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NEW ORLEANS, LOUISIANA – A group of two Republicans and a Democrat sitting on the Court of Appeals of the Fifth Circuit of the United States heard pleadings Tuesday in a case asking them to repeal the Care Act affordable. The Democrat has not spoken, although she remains extremely likely to reject this attack on Obamacare.
The Republicans, by contrast, came to court today with their partisan hats. When the lawyers Jennifer Elrod and Kurt Englehardt, Judges Jennifer Elrod and Kurt Englehardt, the first of the two lawyers to defend the law, were at the podium to present their pleading, they asked him many questions many of which answered with mockery. At one point, Englehardt even accused Siegel of arguing an argument betraying the American War of Independence.
Meanwhile, the three lawyers opposed to the law received critical questions from the two Republican judges, but these issues were not particularly lively and quickly faded. Kyle Hawkins, the lawyer who delivered the bulk of the anti-Obamacare arguments, spent most of his time talking in front of a silent panel, mostly punctuated with uninteresting questions from the outside. Elrod, which was essentially intended to give him something to discuss.
The most worrying sign of all this is that Republicans have spent a lot of time discussing the proper scope of a court order setting aside the Affordable Care Act – a question that is obviously only relevant if they have the intention to do so.
It is estimated that 24,000 Americans will die each year, who would otherwise have lived if Obamacare was ultimately overthrown.
Elrod or Englehardt may have been too embarrassed by the weakness of the arguments put forward by the plaintiffs to ultimately grant them the relief sought. And both Republicans have, at one point, proposed a middle ground that would deprive Americans of the protection offered by pre-existing conditions while leaving certain laws intact.
But smart money would not bet on the rule of law after Tuesday's argument. Texas c. United States seems to end with the triumph of partisanship over the law, at least in the fifth circuit.
The premise of Texas The 2017 tax law, which struck down a provision of the Affordable Care Act that previously required most people without health insurance to pay higher taxes, actually repealed the entire law. Obamacare.
The argument goes a little like this: this provision, known as the "individual warrant", is actually written in two separate provisions. The first provides that most Americans "must" take out health insurance. The second imposes a tax on people who do not. After 2017, the amount of this tax is zero dollars.
In NFIB v. Sebeliusthe Supreme Court confirmed that the individual mandate was an exercise of the fiscal power of the Congress. But wait! Since this tax is now zero, it means it is no longer a tax, so it must be unconstitutional. Worse, because the word "must" still appears in the law, it means that the post-2017 version of Obamacare must now be read as a health insurance purchase order – and even unconstitutional .
This argument poses many problems, but the most important is that the Supreme Court explicitly rejected it. NFIB. As Chief Justice John Roberts wrote in this case.
Neither the law nor any other law attaches negative legal consequences to not taking out health insurance, with the exception of requiring payment to the IRS. The government agrees with this interpretation, confirming that if a person chooses to pay rather than buy health insurance, they will comply fully with the law.
In other words, before 2017, the law gave people the choice between paying a tax or buying health insurance. After 2017, they fully comply with the law by taking out insurance or paying zero dollars.
Nevertheless, both Elrod and Englehardt have repeatedly described the canceled mandate as an "order" to purchase insurance. It's simply wrong under NFIB.
If the court finally cancels the warrant, that in itself does not mean much. The warrant is now gone, so a decision eliminating it should not do that either, but that's where the complainants' arguments take a strange turn.
When a court cancels part of the law, it often has to ask itself if other parts of this law must also fall: an investigation called "divisibility." Divisibility is a speculative inquiry. He asks what hypothetical law would have been passed by Congress if he had known that a provision was invalid.
But such speculation is useless in Texas. Congress has already answered this question. He spent a good part of 2017 debating the repeal of the Affordable Care Act. In the end, they had only votes to repeal a provision, the individual mandate.
So, even if you assume that the sterilized warrant is unconstitutional, we already know that Congress would have preferred the rest of the law to be maintained. This is because the Congress has effectively repealed the individual mandate while allowing the rest of the law to stand.
In addition, the Supreme Court is required to Murphy c. National Collegiate Athletic Association Judges should be very reluctant to override the constitutional provisions of a law after finding that a provision of this law is unconstitutional. "For others. . . provisions to fall, " Murphy held, "it must be" obvious that [Congress] would not have promulgated the provisions that are in its power, regardless of [those] which [are] do not. "
And yet, Elrod and Engelhardt both seemed allergic to the idea that they must follow Murphy. Judge Engelhardt even suggested, at some point, that Murphy should be overturned and that it is the defense lawyers of the law who should be responsible to the lawyer to prove why all this should not be canceled.
When Douglas Letter, counsel for the US House of Representatives, was in the gallery, Engelhardt embarked on a raging war, demanding to know why the House could not solve the problem by amending the Privacy Act. Affordable care to finish the case. . When Letter finally gave the obvious answer, namely that the Senate should pass the law and that President Donald Trump had to sign it, Engelhardt acted as if Letter had been trapped.
Why should judges become "taxidermists?" Asked Engelhardt at one of the strangest moments of the discussion. If part of the law is unconstitutional, why should the political process not resolve the question of how much law should remain? In the meantime, it seems, Engelhardt suggested, the appropriate remedy is simply to remove the entire law.
Of course, the answer is that Engelhardt's approach is completely opposed to what the Supreme Court has said Murphy.
To be fair, there were a few moments when Elrod and Engelhardt seemed embarrassed by the gravity of what they seemed to be able to do. When Letter first came to the podium, for example, he read to them the language of NFIB considering that the reading of the individual mandate by the plaintiffs was totally false and that the two Republicans sat for a few moments in silence before appearing to regain their footing and return to the attack.
Similarly, at times, the two Republicans seemed bothered by the idea that Obamacare provisions that were totally independent of their mandate might have to be repealed – a provision requiring restaurants to display caloric information was mentioned a few times, by example. Elrod and Engelhardt sometimes seemed to be considering the possibility of canceling statutory protections for people with pre-existing illnesses and other insurance rules, while possibly keeping other parts intact.
But the argument as a whole was a disaster for Obamacare and, given the stupendous weakness of the plaintiffs' arguments, the rule of law. Texas could also be one of the largest massacres in American history.
Again, about 24,000 people will die each year. Year after year. If Obamacare is hit. There are tens of thousands of fathers who will never kiss their daughters again and tens of thousands of wives who will never again hold their husbands.
If an invading army committed such an act – if it killed 24,000 innocent people year after year – we would call this act "atrocity". Resolutions would be debated at the United Nations Security Council. Peacekeepers would be sent to intervene.
But in this case, one of the biggest acts of mass murder committed on US soil since the Civil War will not be committed by an army. It could however be committed by Jennifer Elrod and Kurt Engelhardt.
If the law allowed such a result, it might perhaps be justified. But no law supports such a result. It is a pure and cruel ideology to the end.
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