The Red States are pushing to bring down Obamacare, picking up where Congress had stopped

FORT WORTH, Texas – Lawyers from 20 mostly conservative states on Wednesday urged a federal judge to scrap Obamacare immediately, arguing that the removal of the penalty for failing health insurance made the law unconstitutional.

"This is nothing but a shell because its core has been invalidated," said Misha Tseytlin, Solicitor General of Wisconsin.

History continues below

The arguments opened the latest legal attempt to kill the 2010 health care law. While many legal experts felt that the argument was not enough, Attorney General Jeff Sessions put the Trump administration under control of the main elements of the aggression, opposing in particular the popular protection of the law for pre-existing persons.

Attorneys General tried to pick up where the GOP-led Congress had stopped, asking for a permanent injunction to stop the law enforcement. They argued that because Congress had canceled the individual mandate – to zero the penalty for not having coverage from next year – the rest of the law must also be eliminated.

The Trump administration 's lawyers partially subscribed to this argument, but said that remedies should not be applied until next year.

"There could be potential for chaos in the insurance markets," said Brett Shumate, Assistant Deputy Attorney General of the Justice Department, noting that registrations opened for 2019 start in a few weeks.

Reed O. Connor, a United States District Court Judge, one appointed by George W. Bush, vigorously questioned the lawyers during the three-hour hearing, but gave no indication as to when he would decide. "I will think about what you said and I will try to get something as quickly as possible," said O. Connor, appointed by George W. Bush.

Lawyers representing 16 states run by Democrats who intervened in the case to keep Obamacare intact said that it would be extraordinary for the court to overturn the overt congressional will, which repealed the tax penalty against the government. last year while leaving the rest of the law in force. .

"Without access to insurance, Americans would again face health problems, financial ruin and death," said Neli Palma, California's Deputy Attorney General.

O & # 39; Connor expressed skepticism that it would be inappropriate to reconsider the intent of the legislators who adopted Obamacare in deciding the merits of the case. He also noted that Supreme Court justices felt that Obamacare's individual mandate and insurance coverage were inseparable by twice confirming the constitutionality of the law.

"Every judge … has concluded this," said O & # 39; Connor.

The arguments have served to open up to a large-scale court battle that could reach the Supreme Court, where health law has already survived two major challenges. And they came the same day the Senate Judiciary Committee weighed the appointment of Brett Kavanaugh for what might be the final deciding vote on the high court. The Democrats seek to derail the nomination in part by arguing that Kavanaugh could grant a fifth deciding vote to overturn the law.

The trial has already become critical for the campaign attacks ahead of the mid-term elections, with the Democrats stopping Republicans from setting up protections for people with pre-existing conditions. More than seven out of ten Americans – including a majority of Republicans – said the continuation of this protection was "very important," according to the latest Kaiser Family Foundation poll.

Two of the attorneys general, Josh Hawley in Missouri and Patrick Morrissey in West Virginia, defy Democrats in office in important contests in the Senate.

Republicans in Congress have tried to get vaccinated by passing legislation that would prohibit insurance companies from denying coverage to people with expensive medical needs. But health policy experts say they are far from the protections of Obamacare, because insurers could still charge sick people more and limit the type of medical care covered.

Preliminary arguments drew attention Wednesday on Capitol Hill, where Democrats in the House have denounced the lawsuit as a threat to people suffering from asthma, diabetes or other chronic illnesses . "Honestly, I've heard more people concerned about the possibility of eliminating protections for pre-existing conditions than any other issue, "said Frank Pallone of New Jersey, the highest-ranking Democrat of the Energy Committee. and the commerce of the House. "That's all they talked about."

Despite all efforts to weaken it, Obamacare retains its main pillars and helps about 20 million Americans get health coverage.

But the Red States argue that Congress's removal of Obamacare's fiscal penalty for failing to buy insurance – a sanction deemed "essential" by law-makers – renders the rest of the law unenforceable. They point out that the Supreme Court upheld the constitutionality of the individual mandate in 2012 on the grounds that it was a tax. The idea behind the mandate was to bring younger, healthier people into the new insurance markets. If only older and sicker people subscribe, markets may enter a "spiral of death" and collapse.

The Trump administration is in agreement and made the unusual decision to refuse to defend any federal law. The Department of Justice argues that the consumer protection of the Affordable Care Act – including the prohibition of discriminating against people with pre-existing conditions – should be removed, but that the rest of the law, including the grants should remain in place.

Legal experts are generally skeptical about the merits of the lawsuit, noting that Congress did not abolish the whole law when it had the opportunity – even if Republicans have certainly spent months trying . The gradual elimination of the tax penalty in force in 2019 has clearly shown that lawmakers thought that Obamacare could do without the warrant, a legal concept known as divisibility. Judges are generally very wary of the intention of legislators.

"You only use divisibility when you wonder what Congress would have done," said Katie Keith, a professor at Georgetown Law School, who has written extensively on ACA. "In this case, we know exactly what Congress would have done because they have zeroed the mandate and left everything else."

Even some of Obamacare's most ardent legal critics question the validity of the Red States' arguments. Jonathan Adler of Case Western Reserve University Law School, one of the architects of ACA's last major court challenge, filed a case with three other law professors calling on the Texas court to dismiss claims.

"Courts have always been wisely cautious when considering separation, looking for evidence available to Congress and seeking to save rather than destroy it," they wrote. .

But eight years of legal battles on Obamacare have shown that courts do not always pronounce in a predictable way. Many expected the 2012 Supreme Court to find the individual mandate – and perhaps the entire status – unconstitutional. Instead, Chief Justice John Roberts sided with the Liberals on the ground to uphold the mandate.

Since then, Republicans have multiplied unsuccessful repeal attempts, and public opinion has been in favor of the law. This puts the Republicans on the defensive.

"It's a little surprising that we continue to advocate because popular opinion has evolved, and that's what 2017 has shown us," said Erin Fuse Brown, a professor of health law at Georgia State University. . laws the benefits had not even taken effect when the Supreme Court ruled for the first time on its legality. "It's a completely different political story."