The future of the Affordable Care Act was thrown into limbo again on Wednesday, when a panel of three federal appeals court judges seemed poised to uphold a lower-court ruling that a pinnacle of the health care law – the requirement that Americans have health insurance – is unconstitutional.
On Wednesday, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments in the case of Texas v. Azar, a suit spearheaded last year by 20 Republican states, led by Texas Attorney General Ken Paxton and endorsed by the White House.
They argued that because the financial penalty of the individual mandate was repealed by the $1.5 trillion tax law passed by Republicans and signed into law by Trump, the Obama-era law was no longer constitutional. The Supreme Court initially upheld the ACA because of the individual mandate under Congress’ taxing authority.
The hearing follows a 2018 ruling by U.S. District Judge Reed O’Connor in Fort Worth, Texas. O’Connor, a conservative Republican, struck down the law as unconstitutional because Congress gutted the individual mandate.
But two of the three appointees, both Republicans, appeared skeptical about Democrats’ argument that Republicans did not intend to invalidate the entirety of the law by removing the financial penalty for not purchasing health insurance. Jennifer Walker Elrod was appointed by President George W. Bush in 2007, and Kurt Engelhardt was appointed by Trump in 2018.
According to multiple news reports, Judge Engelhardt questioned why, if Congress intended to keep the health law intact, the Republican-controlled Senate hadn’t sent a lawyer to lay out that case.
“Why would the Senate not also be here to say, ‘Oh, this is what we meant when we wrote this?’” he asked. “They’re sort of the 800-pound gorilla that’s not in the room.”
Any kind of ruling by the appeals court, however, is likely to send the ACA to the Supreme Court. The third judge Carolyn Dineen King, who was appointed by former President Jimmy Carter, remained silent.
The ultimate outcome of the lawsuit will affect millions of Americans, and the repeal of the nine-year-old law could leave up to 32 million people without health insurance by 2026, according to a Congressional Budget Office report from 2017 about the effects of repealing the ACA.