Federal judges weigh on the fate of Obamacare while Trump tries to clear the law

At the heart of the controversy is the individual mandate – the obligation for all Americans to take out health insurance or face a tax penalty. The Supreme Court upheld the law in 2012, ruling that if the warrant was unconstitutional by itself, the law as a whole was a legitimate exercise of Congress's power to impose taxes.

Republicans controlling Congress fought back in 2017, reducing the tax penalty to zero, pushing Texas and other Red states to sue. Reed J. Connor of the Federal District Court ruled in their favor, concluding that since there was no longer any tax, the law could not be saved as a use of the taxing power. .

He added that since the ACA was a network of interlinked provisions, the law as a whole had to be respected, including provisions for insurance companies to provide coverage to persons with pre-existing conditions and to provide insurance coverage. allow children to be covered by their parents' diets until the age of 26.

O & # 39; Connor suspended his decision while supporters of the law were carrying the case to the Fifth Circuit Court of Appeals. Three judges of this court will hear Tuesday's arguments.

The Department of Justice initially stated that it only subscribed to part of O Connor's decision. The judge should have left parts of the law in force, the government said, including provisions to extend Medicaid to millions of the poorest people in America, to create markets for drugs. 39, health insurance and subsidize people with low or moderate incomes.

But in late March, Trump ordered the government to fully subscribe to the judge's decision. "After further examination," said the Department of Justice in its brief to the court of appeal, "the US position is that the balance of the ACA (.. .) must be canceled ".

The court will consider three main issues. Advocates of Obamacare said that by setting the tax at zero, Congress had effectively waived its mandate, so that there was no more constitutional issue. The law "no longer requires anyone to maintain health care coverage – nor to take any other action," the blue states said in their dossier. At most, it is now simply "an incentive to buy health insurance".

Secondly, the court of appeal must decide whether O & # 39; Connor was correct in saying that the entire law must be rescinded or if parts of it can still be saved. In defense of the opponents, Texas said that Congress had repeated in passing to Obamacare that the mandate was "essential" and that the rest of the law would collapse without him. The blue states and the House said that if Congress wanted to repeal the entire law, it would have said when it would have set the tax penalty to zero in 2017.

Finally, the Court of Appeal must determine if the case is not applicable now that the Department of Justice, which had defended at least part of the law, has changed sides and joins the Red States to support the decision of the lower court which invalidated it. Both groups state that others have no legal status to appear in court.

If the court of appeal decides by December, the case could be heard by the Supreme Court in its next term, which will begin in the fall.

"My feeling is that one of the reasons the appellate court scheduled the pleading for July was to be able to settle the case in time for the next term," said Professor Steve Vladeck. , expert in federal courts at the University of Texas School. of the law.

A win for Obamacare's opponents could prove to be a mixed blessing for Republicans.

"It could turn against them because it would put health care first in the 2020 election agenda," said Mark Murray, political editor at NBC News. "Going back to the last election cycle, Democrats have the big advantage in health care."