Federal Appeals Court Appears Skeptical of Obamacare; Law’s Future in Doubt

Three-judge panel in New Orleans will rule on case, expected to go before Supreme Court next year…

Obamacare's Fate to Be Decided by Federal Appeals Court

AFP / Demonstrators protest in June 2017 in support of Obamacare.

(AFP) Former president Barack Obama’s signature healthcare law went before a federal appeals court Tuesday in a high-stakes case whose outcome could play a major role in the 2020 presidential campaign.

A three-judge panel of the 5th US Circuit Court of Appeals in New Orleans was considering a lower court decision that found the bitterly contested Obamacare law—formally known as the Affordable Care Act—to be unconstitutional.

The panel sharply questioned attorneys defending the Affordable Care Act, increasing the chances that the court may throw out at least part of the 2010 law.

Two of the three judges on the appeals court panel — both appointed by Republican presidents — repeatedly pressed California’s deputy solicitor general, who is defending the law, to explain why it should remain on the books after Congress in 2017 scrapped a penalty against people who didn’t have health insurance. That provision was once deemed essential to the program.


The judges seemed disinclined to decide what parts should be saved or struck down, as California and other defenders of the law have urged.

“Congress can fix this,” said Judge Kurt Engelhardt, an appointee of President Donald Trump.

Engelhardt suggested that if the health care law needs to be revised, lawmakers on Capitol Hill should do it, not the courts.

Engelhardt and Judge Jennifer Walker Elrod, who was appointed by President George W. Bush, could form a majority on the three-judge panel considering the fate of the sweeping challenge to the health care law brought by Texas and 17 other mostly Republican states. The third judge on the panel, Carolyn Dineen King, was appointed by President Jimmy Carter. She did not speak at the hearing Tuesday.

Whatever happens, the case is likely to end up before the Supreme Court sometime next year—dropping a politically radioactive issue into the middle of a heated presidential campaign.

The court’s previous ruling in 2012’s National Federation of Independent Business v. Sebelius held that the law was permissible only by defining the individual mandate—which forced all Americans to purchase insurance or pay a penalty—as a tax.

However, under President Donald Trump’s 2017 tax overhaul, Congress eliminated the penalty for people who failed to sign up

The three judges on the 5th Circuit panel now must decide whether that change invalidates the whole law.

The Texas federal court that declared the law unconstitutional in December said the mandate was “the keystone” and that in its absence entire law should be struck down.

The case pits 18 Republican-led states, backed by Trump, against 20 Democrat-led states, supported by the Democrat-majority House of Representatives.

Overturning the Affordable Care Act would be a dream come true for Trump, who campaigned on the promise to repeal the law but has so far failed to deliver.

An earlier effort to repeal it was narrowly defeated in Congress after Sen. John McCain—who had pledged to back it previously—returned from his deathbed while sick with brain cancer in order to deal its finishing blow with a dramatic thumbs down.

The New Orleans court’s decision is not expected for several months. The outcome will apply to all states, but is expected to be appealed to the Supreme Court.

Liberty Headlines’ Ben Sellers and the Los Angeles Times contributed to this report.