Health care hasn’t been a front-burner issue for the political world in recent months, but today in the 5th Circuit Court of Appeals, the fight over the Affordable Care Act returns to the national spotlight.
A panel of federal judges in New Orleans takes up the future of Obamacare on Tuesday, hearing from states that say it’s unconstitutional and from Justice Department lawyers directed by President Donald Trump to oppose the entire law, too.
The Texas v. United States case is as multifaceted as it is important, so let’s dig in with some Q&A.
It’s been a few months since I’ve thought about this and I’m feeling a little rusty. What are we talking about again?
The U.S. Supreme Court already sided with the ACA – twice – but the Republican tax plan changed the policy landscape a bit. As regular readers may recall, when GOP policymakers approved their regressive tax plan, they simultaneously zeroed out the health care law’s individual mandate penalty. And that, in turn, gave several far-right attorneys general an idea: they could once again file suit against “Obamacare,” arguing that the penalty-free mandate is unconstitutional, and given the mandate’s importance to the system, the entire law should be torn down.
That sounds like a rather desperate ploy. Is anyone actually buying this argument?
Yes. Shortly after the 2018 midterm elections, U.S. District Judge Reed O’Connor – a Bush-appointed jurist in Texas – agreed so enthusiastically with the Republican arguments that he struck down the entirety of the Affordable Care Act. That ruling, however, didn’t go into effect, and it’s currently on hold as the appeals process moves forward.
I’ve heard for months that this case was about Republicans trying to get rid of protections for Americans with pre-existing conditions, but it sounds like that ruling was even more sweeping.
Correct. The judge in the case could’ve ruled against the ACA in a narrower way, but he decided instead to take a sledgehammer to the American health care system, because he felt like it, giving Republicans even more than they expected.
Did the ruling make sense?
So the 5th Circuit will reverse it, right?
For health-care advocates, that’s certainly the hope. The trouble is, the case will appear before a three-judge panel, and two of the judges were nominated by Republican presidents: one from George W. Bush, the other from Donald Trump. (The third judge in this case was a Carter appointee.)
Didn’t I hear something about a possible standing issue?
The 5th Circuit recently asked both sides in this case to explain why those defending the ACA have the right to participate in the case.
I’m confused. Why wouldn’t they?
Because originally, the case pitted Republican opponents of the health-care law against the Justice Department, which was responsible for defending the ACA. The Trump administration, however, switched sides, endorsed the Republican argument, and asked the judiciary to destroy the existing health care system. Congressional Democrats and several state attorneys general intervened to defend the law, but there’s some question as to whether or not the 5th Circuit will allow them to argue the case.
And if the appeals court rejects the appeal over standing concerns?
Then the lower court ruling would stand and the case would be appealed to the U.S. Supreme Court.
Is that likely?
For now, that’s unclear. It’s possible the 5th Circuit was just being thorough, and once the standing issue is resolved, the case will focus in earnest on the mandate and the question of whether the entirety of the ACA must be torn down. (Even Trump’s Justice Department has conceded that Democrats should be seen as having standing in this case.)
My family has health security because of the ACA and you’re making me awfully nervous.
In the short term, don’t panic. The Affordable Care Act is still the law of the land, the consensus among legal experts is that the case against the law is very weak.
That said, those same legal experts thought no judge in his/her right mind would take the last anti-health-care lawsuit seriously, and three Supreme Court justices endorsed it anyway. The high court is even more conservative now than it was a few years ago.
You’re still not making me feel better.
Well, then let me close with one final observation. The last time the Supreme Court considered the legality of “Obamacare,” it prevailed in a 6-3 ruling. Of the six justices in the majority – Roberts, Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor – five are still on the nine-member bench. It’s why, when push comes to shove, most of the people involved in this fight believe common sense and a sensible approach to the law will ultimately prevail.
Three hours of oral arguments will begin in Louisiana later today.