ObamaCare will be back in court on Tuesday in a closely watched case hanging over the health care system.
The 5th Circuit Court of Appeals in New Orleans will hear arguments in a lawsuit backed by the Trump administration seeking to overturn the entire 2010 Affordable Care Act (ACA).
Legal experts on both sides of the aisle say the challengers’ legal arguments are weak and the lawsuit is unlikely to ultimately succeed, but nothing is assured. And regardless of the outcome, Democrats are using the lawsuit to argue Republicans are a threat to the 20 million people who rely on ObamaCare for health insurance.
The lawsuit has proved to be a headache for congressional Republicans seeking to turn the page on their efforts to repeal ObamaCare after the issue helped Democrats win back the House in last year’s midterm elections.
“Once the Titanic was already hit with an iceberg, the worst thing they could have done would be steer towards another one,” said Democratic strategist Jesse Ferguson. “If [Republicans] were hoping to get right on this issue, going to court to overturn it seems to be the wrong way about it.”
Even if the 20 Republican-led states that brought the lawsuit fail in their endeavor, as many legal experts predict, the case will largely stand as a political hammer for Democrats.
But the mere possibility that ObamaCare could be overturned is being viewed as a potential recipe for chaos given that the health care system has adapted in countless ways to the law over the past nine years.
The challengers’ argument rests on the fact that Congress in 2017 repealed the financial penalty for not having health insurance under ObamaCare’s individual mandate while leaving in place an empty shell of a mandate with no penalty for violating it.
The ObamaCare opponents argue that the remaining mandate is now unconstitutional because without a financial penalty, the mandate cannot be upheld as part of Congress’s power to tax.
They then go a step further by arguing that because the empty shell of a mandate is unconstitutional, the entirety of the ACA should be struck down because the mandate is inextricably tied to the rest of the law.
Legal experts in both parties say that even if the remaining mandate is unconstitutional — a disputed point in itself — it would be quite a stretch to argue the rest of the law should be struck down as a result. Congress’s intent was clear in 2017, experts say, when lawmakers repealed only the financial penalty for violating the mandate, purposely leaving the rest of the law intact.
“It just doesn’t make sense to say that this mandate, which is now toothless, is essential to the ACA or that Congress thought so,” said Ilya Somin, a law professor at George Mason University who supported the 2012 lawsuit against ObamaCare but thinks the current bid to strike down the entire law goes too far.
In December, a judge in Texas declared the entire law invalid, but experts expect that ruling to be reversed either at the 5th Circuit Court of Appeals or eventually at the Supreme Court.
If the case makes it to the Supreme Court, the decision would likely be handed down in June 2020, dropping a bomb in the center of the presidential election.
“I think there’s probably a better-than-even chance it gets reversed at the 5th Circuit,” said Tim Jost, a health law expert at Washington and Lee University who supports the ACA.
Experts say that if the 5th Circuit upholds ObamaCare, the case is unlikely to make it to the Supreme Court because the justices would decline to hear it. And if the case makes it that far, the Supreme Court would “almost certainly” uphold ObamaCare, Jost said.
The case on Tuesday will be heard by a three-judge panel: Carolyn King, Jennifer Elrod and Kurt Engelhardt, who were appointed by former President Carter, former President George W. Bush and President Trump, respectively.
That means there will be two judges appointed by GOP presidents and one by a Democratic president.
There is some added uncertainty stemming from procedural issues.
The appeals court recently set observers chattering when it asked the parties whether the blue states that stepped in to defend ObamaCare have “standing” to make their case. That is, are they sufficiently affected by the case to be able to step in?
Nicholas Bagley, a law professor at the University of Michigan, tweeted that the move was “an ominous sign” for ObamaCare.
It is possible that if the court rules that no one has standing to argue in defense of ObamaCare, the lower court ruling striking down the law could stand.
But Somin, the George Mason law professor, said that would likely just delay the case, not lead to ObamaCare being struck down. It is also possible the court will find that the red states did not have standing to bring the lawsuit in the first place, which would be a win for ObamaCare.
Jost, of Washington and Lee, said the appeals court could also “easily” strike down the remaining mandate but leave the rest of the law in place.
That would give a small nod to the challengers but not, Jost said, “completely overthrow America’s health care system.”