Appeals court seems unsure on whether ObamaCare mandate is constitutional

A federal appeals court on Tuesday hinted that it would strike down ObamaCare’s individual mandate as unconstitutional, but the three-judge panel was not as clear about whether they would overturn the entire law.

Two Republican-appointed judges on the 5th Circuit Court of Appeals grilled attorneys representing Democratic attorneys general about whether Congress intended to invalidate the entire law when lawmakers eliminated the penalty for the individual mandate.

The judges questioned whether ObamaCare would be able to stand on its own if the mandate were declared unconstitutional. The outcome of the lawsuit puts at risk health care for 20 million Americans who are covered by ObamaCare.

Legal experts on both sides of the aisle said the challengers’ legal arguments are weak and the lawsuit is unlikely to ultimately succeed, but the lines of questioning from the judges puts that analysis in doubt.

The issue is whether the mandate can be separated from the rest of the law, which extends far beyond just health insurance. 

Under the mandate, Americans who did not buy health insurance had to pay a financial penalty, a provision the U.S. Supreme Court upheld in 2012 by calling it a tax.  

If you no longer have the tax why isn't [the mandate] unconstitutional?" said Jennifer Elrod, a judge appointed by former President George W. Bush.

Attorneys for a coalition of Democratic states and the House of Representatives argued that Congress did not want the Affordable Care Act to collapse when it eliminated the individual mandate penalty as part of the 2017 GOP tax law. 

Douglas Letter, representing the House of Representatives, said Congress knew exactly what it was doing, and that a Texas District Court erred drastically when it ruled the entire law was unconstitutional.

“We know that under severability you are directed to save everything ... unless it’s evident that Congress ... would have preferred no statute,” Letter said.

Letter said the mandate penalty is a suggestion, not a command. 

"The Supreme Court said unequivocally, either you shall maintain health insurance or incur a tax," he said. “We know definitively ‘shall’ does not mean ‘must’,” he said.

Judge Kurt Engelhardt, a Trump appointee, said Congress was limited in what it could do through the budget reconciliation process.

Engelhardt indicated he thinks Congress should solve the problem.

"There is a political solution here," Engelhardt said.

Elrod said Congress may have believed at the time that eliminating the mandate penalty was the key to repealing the rest of the law.

The lawsuit against ObamaCare was brought by 20 Republican state attorneys general, though that number is now down to 18 after Democratic governors took over in Maine and Wisconsin after November’s midterm elections.

In December, U.S. District Court Judge Reed O’Connor sided with the Republican states, and declared the entire law invalid, a move that shocked legal experts. 

Robert Henneke, who represents a set of private business owners who are on the case as plaintiffs alongside the GOP states, said he was optimistic about the outcome.

“Today’s arguments seem to have gone very, very well,” Henneke said in a phone call with reporters. 

“The trial court ruled in our favor, and it did not seem that the Fifth Circuit panel really had much disagreement with that," Henneke said. 

The court is expected to rule in the coming months.

No matter the outcome, 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.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThe Hill's 12:30 Report: NY Times story sparks new firestorm over Kavanaugh Senator asked FBI to follow up on new information about Kavanaugh last year Congress must reinstate assault weapons ban MORE (R-Ky.) said Tuesday that he supports protecting people with pre-existing conditions.

“There’s nobody in the Senate not in favor of covering pre-existing conditions. Nobody,” McConnell said. 

If the law was overturned, McConnell said the Senate would act quickly on a bipartisan basis to restore the law’s protections for pre-existing conditions. 

Democrats are eager to hammer Republicans every chance they can.

Senate Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerSchumer, Pelosi push Trump to back universal background check bill Sinema says she would back Kennedy in race against Markey Democrats threaten to withhold defense votes over wall MORE (D-N.Y.) said GOP promises on protecting pre-existing conditions amount to “a lot of bunk.”

If the law is overturned, Republicans “will own the consequences..they will reap the nasty crop that they sowed,” Schumer said Tuesday. “It’s a cruel and nasty decision.” 

Jessie Hellmann contributed