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Amy Goldstein
Reporter covering health policy and other social policy issues
NEW ORLEANS – Federal Court judges on Tuesday expressed skepticism that the nearly 10-year-old law that is reshaping the country's health care system should remain intact after the federal congress removed a tax penalty for taxpayers. Americans who do not have health insurance.
During a pleading in an extremely worrying case for consumers and politicians ahead of the 2020 elections, two members of a panel of three US Court of Appeals judges questioned lawyers representing the Democratic States and the US House to explain why the Affordable Care Act remains valid.
"If you do not have the tax anymore, why is it not unconstitutional?" Asked Justice Jennifer Walker Elrod, appointed by President George W. Bush. She and her other representative, Judge Kurt Engelhardt, appointed by President Trump last year, reiterated that the law had been written without explicit clarification, guaranteeing that if a party was withdrawn by Congress or the courts, the rest would remain in place.
The committee's decision concerns coverage by millions of Americans who acquired it in accordance with the law through the expansion of Medicaid in three dozen states and a new insurance market, as well as consumer protection for most people with private health plans. Whatever the decision of the circuit court, his judgment could be appealed to the Supreme Court, catapulting these issues to the forefront of the presidential and legislative elections of 2020.
Democrat advocates struggling to preserve the law argued that the Republican Congress had tried to repeal the ACA two years ago without success and that by removing the penalty at the end of 2017 in the context of vast tax changes, it would not had touched no other element of the vast law. They also said that Congress had not eliminated the penalty but had simply reduced the amount to zero – an assertion disputed by members appointed by the Republican president.
Kyle Hawkins, Solicitor General of the Texas Attorney General, who initiated the lawsuit in February 2018, replied: "I am not in a position to psychoanalyze Congress. . . what Congress intended to do. "
Despite these pointed questions, the hearing did not clearly indicate how the committee will decide on the appeal of a December opinion by a Texas District Judge who has stated that the entire ACA was unconstitutional. Members of the panel did not specify when they intended to issue an opinion, although the court generally stated that its judges would try to do so in a few months.
Engelhardt, appointed by Trump, mainly lawyers representing the Attorney General of California, Xavier Becerra, twenty other democratic states and the democratic house. Elrod has a lot of questions on both sides. Judge Carolyn Dineen King, former chief justice of the tribunal appointed by President Jimmy Carter, is the third and only person appointed to the committee to serve on the committee. She remained silent during the hearing for more than 90 minutes.
Tuesday's arguments were the last step in the winding law process before the courts since it was passed in 2010. The Supreme Court has twice confirmed its constitutionality in 2012 and 2015.
But new shakes on ACA's future were heard in December when US District Judge Reed O'Connor spoke out against all of the law as part of the deal. 39, a lawsuit that even some critics of the law considered legally weak. The law remains in effect during appeals.
The television crews in front of the marble courthouse in downtown New Orleans and the waiting lines under the heat were hoping to have a seat in the hearing room, as well only tapes broadcast by Washington in the hours preceding the hearing.
The pro-ACA groups warned consumers if the law was canceled. The Democratic Senate Campaign Committee has launched attack ads accusing vulnerable Republicans of not working hard enough to protect patients with pre-existing medical conditions. On the other hand, conservative groups have proclaimed that the end of the ACA would open a new era of more affordable insurance and a wider choice of health care plans.
In spite of all the drama, a large part of the lawyers 'presentations and the judges' questions focused on technical issues, mainly on the question of "divisibility" – whether the elements of law can exist independently of each other – and if the different parties to the convention. cases have the legal capacity to participate.
At one point, Engelhardt suggested that it was incumbent on Congress to find a solution to the disputes that have been blocking the law since it was adopted, when Democrats controlled Congress and President Barack Obama had entered his mandate a little more than a year. Engelhardt asked if the judiciary should be "taxidermist for every major legislative accomplishment achieved by Congress".
Douglas Letter, General Counsel of the House, responded to the judge: "You can not and should not make sense of the fact that Congress has not legislated any more" on the ACA.
Many points and counterpoints presented at the hearing have been part of the case since the beginning. But August Flentje, special advocate of the civilian division of the Justice Ministry, has made an argument that the administration has only begun to argue recently.
Flentje asserted that if the 5th Circuit was in agreement with the lower court on the fact that the ACA as a whole was unconstitutional, the only states involved would be Texas and the 17 GOP states that would have it. have joined. He stated that the legal remedy for these States would only concern those parts of the law that had harmed them.
Elrod asked Flentje to elaborate. "The question is complicated and should be resolved," he said.
In an unusual break with tradition, the Trump administration announced about a year ago that she would not defend the ACA in court. Department of Justice officials argued at the time that the insurance law requirements and consumer protections are no longer valid without penalty but other parts of the law must be maintained. This spring, the administration changed position in the middle of its call. The Ministry of Justice told the 5th Circuit that it now agreed with the District Court that the law was invalid.
The Justice Department's officials avoided defending an existing federal law, a coalition of attorneys general of democratic states, led by Becerra, took office. And when the House returned to democratic control earlier this year, it intervened in the case to take sides with the democratic states.
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