Obamacare Could Be in Trouble Starting Tomorrow

Photo: Tasos Katopodis/Getty

Tomorrow, a Trump administration lawsuit challenging Obamacare will head to a federal appeals court, which will consider whether the Affordable Care Act is still valid after Congress ended the tax penalty for those who don’t buy health insurance, according to Politico.

If the 5th U.S. Circuit Court of Appeals in New Orleans rules against the ACA tomorrow, the Supreme Court would most likely take up the case. The Supreme Court would then be responsible for ruling on the constitutionality of the law for the third time since 2010. The court has backed the law in its two other challenges.

The lawsuit was filed by 18 Republican-majority states in February 2018, as the Republican attempt to crush the law began its slow death in Congress. The suit argues that without the individual mandate to buy healthcare, the law is unconstitutional, as the Supreme Court previously upheld the mandate. U.S. District Court Judge Reed O’Connor shocked legal experts by siding with the Republican states in December of last year, leading to the appeal.

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Then, in March, the Department of Justice decided that it too supported knocking down the ACA with this lawsuit. Whaddayaknow!

“If ultimately the trial court’s decision does get upheld, it’s going to have really far-reaching consequences,” MaryBeth Musumeci, associate director of the Kaiser Family Foundation’s Program on Medicaid and the Uninsured, told Politico. “That will be pretty complicated to disentangle and reach nearly everyone in the country.”

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Many legal experts believe that O’Connor’s decision was incorrect. Even the Republican attorneys general of Ohio and Montana have said they disagree with the ruling.

“There’s a pretty strong bias… to try to preserve things under law, rather than knock them down,” Tom Miller, a health care expert at the conservative think tank the American Enterprise Institute told Politico. “The preponderant stance has been to go minimal in terms of knocking out broad federal laws.”

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If the ruling is upheld, as the Trump administration wants, it’s hard to know what kind of political impact it would have. In 2018, Republicans running in the midterms were hammered by Democratic challengers who pointed to the administration’s support of getting rid of the preexisting condition protections in the ACA.

If the ACA was knocked down, it would also force Republicans to produce their long-awaited alternative health care plan, something they’ve repeatedly failed to do.

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Things are looking pretty precarious on the Democratic side for tomorrow’s decision.

From Politico:

Even before oral arguments, the conservative-leaning 5th Circuit spooked ACA supporters by questioning whether the blue states or the House have the legal standing to appeal the federal judge’s decision invalidating the law. The inquiry, issued two weeks ago, was sparked by the Trump administration’s recent shift in legal strategy to support the judge’s decision, essentially putting the plaintiffs and defendants on the same side of the lawsuit.

Obamacare advocates feared that the appeals court could let O’Connor’s ruling against the law stand without a review by a higher court. But in legal briefs filed last week, all of the parties involved in the lawsuit — including the Republican-led states behind it — argued that the appeal should be allowed to proceed.

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Experts say that the case won’t be decided without a review by the Supreme Court.

“Judge O’Connor is not going to get to decide the constitutionality of the ACA — either in the red states or nationwidewithout some kind of Supreme Court review,” Nicholas Bagley, a University of Michigan Law School professor who is an expert on the case, told Politico. “By hook or by crook, the Supreme Court will get the case.”

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But that shouldn’t be comforting—lest we forget, the Supreme Court now has a conservative majority.

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