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Conservative judges put the ACA's future in jeopardy

For much of the year, health-care advocates have concerned about the Texas v. U.S. case, but not too concerned. It may be time to revisit those assumptions.
A stethoscope sits on an examination table in an exam room at a Community Clinic Inc. health center in Takoma Park, Maryland, April 8, 2015. (Photo by Andrew Harrer/Bloomberg/Getty)
A stethoscope sits on an examination table in an exam room at a Community Clinic Inc. health center in Takoma Park, Maryland, April 8, 2015. 

For much of the year, health-care advocates have been concerned about the Texas v. U.S. case, but not too concerned. Yes, a far-right judge in Texas used the case as a weapon to rule against the Affordable Care Act in its entirety late last year, but there was a general consensus -- from the left, right, and center -- that the ruling was absurd and would obviously fail on appeal.

It may be time to revisit those assumptions.

A federal appeals court panel grilled Democratic attorneys general on Tuesday about whether Obamacare violates the U.S. Constitution, as it weighs whether to uphold a Texas judge's ruling striking down the landmark healthcare reform law.The judges focused on whether the 2010 Affordable Care Act lost its justification after Republican President Donald Trump in 2017 signed a law that eliminated a tax penalty used to enforce the ACA's mandate that all Americans buy health insurance. [...]"If you no longer have a tax, why isn't it unconstitutional?" Judge Jennifer Elrod, who was appointed to the 5th Circuit Court of Appeals by Republican President George W. Bush, asked attorneys for the Democratic officials defending the law during a hearing in New Orleans.

It's a tough question to wrap one's head around. For much of this decade, the right argued, "The individual mandate is unconstitutional so judges must tear down 'Obamacare.'" The U.S. Supreme Court disagreed and the law remained intact.

In late 2017, however, Republicans effectively scrapped the mandate penalty in their tax plan, at which point, the right argued, "The individual mandate has been zeroed out so 'Obamacare' must be seen as impermissible."

There is no scenario in which this makes sense, and yet, there was a Bush-appointed appellate judge yesterday, suggesting the ACA's future is in doubt precisely because of this nonsensical train of thought.

Indeed, by some measures, it wasn't even the strangest thing Elrod said during oral arguments in the 5th Circuit yesterday.

At a separate point in the proceedings, Elrod made the case that when congressional Republicans zeroed out the individual mandate, they may have done so in order to destroy the entirety of the health-care-reform law.

According to the Republican judge, perhaps lawmakers thought to themselves at the time, "Aha, this is the silver bullet that's going to undo Obamacare."

If that sounds to you like a crazy-pants argument, rest assured, you're not alone.

Look, this need not be complicated: congressional Republicans considered legislation to repeal the Affordable Care Act and that bill failed. Indeed, the GOP majority that was in place at the time considered a series of proposals to scrap "Obamacare." Each of them fell short.

At that point, Republicans moved on to tax policy, and as part of that effort, GOP officials threw in a measure to lower the individual-mandate penalty to zero. To hear Judge Jennifer Elrod tell it, Republicans may have seen this change as a "silver bullet" to destroy the existing American health-care system, but we know that's wrong. Indeed, there's no need for mind-reading -- something judges are not supposed to do anyway -- because the GOP lawmakers are readily accessible and many have already said they had no intention of using this provision to "undo" the Affordable Care Act.

Mother Jones' Kevin Drum added, "Republicans squawk endlessly about 'judicial activism' and the depredations of the liberal 9th Circuit. But what we heard today goes light years beyond anything the 9th Circuit has ever considered. If the 5th Circuit actually follows through on any of this stuff it would be little different from simply appointing themselves a separate legislature with the power to overturn any laws they didn't like. And I'll bet that not a single 'constitutional conservative' will so much as mutter under their breath about this."

So where does this leave us? If the Republican judges on the 5th Circuit's panel rule against the ACA -- after yesterday, a likely scenario -- the case will almost certainly go to the U.S. Supreme Court for the third time.

I'd caution against making bold predictions, but there's a reason health-care advocates are feeling some cautious optimism. As we discussed yesterday, the last time the high court considered the legality of the ACA, 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.