Appeals court hears case that would strike down Obamacare

5:32 p.m. ET, July 9, 2019

An appeals court is considering the fate of Obamacare. Here's what you need to know.

An appeals court in New Orleans heard a case this afternoon that would strike down the Affordable Care Act, also known as Obamacare.

Our live coverage is wrapping up, but here's what you need to know about the hearing — and what happens next.

  • The big takeaway: During the hearing, two Republican-appointed judges on the appeals panel today suggested that they might side with a lower court judge who said last year that the whole Obamacare law should be struck down.
  • About the judges: It's a panel of three judges — two Republican-appointed and one Democrat-appointed — meaning two of the judges will control the ruling.
  • The two sides: Lawyers from the Trump administration and a group of Republican states squared off against attorneys from a coalition of Democratic states and the House of Representatives.
  • This is the appeal of a case out of Texas: Last year, US District Court Judge Reed O'Connor sided with a group of Republican-led states that sought to declare the ACA unconstitutional
  • So what happens next? The judges did not issue a ruling, so a decision is still pending. It's important to note that while the Texas judge's decision last year struck down Obamacare, that ruling was put on hold pending the appeal — so the ACA is still in place.

5:27 p.m. ET, July 9, 2019

Judges press Justice Department attorney on fate of the ACA

Judge Jennifer Elrod, a George W. Bush appointee, and Judge Kurt Engelhardt, a Donald Trump appointee, pressed a Department of Justice attorney about what would happen if the courts found that the law was unconstitutional.

Justice Department Attorney August Flentje said the administration is “appreciative” that the district court judge put his ruling on hold, stressing that if the Affordable Care Act falls, a lot must be sorted out.

“It’s complicated,” he said, noting that the case should go through all the appeals first.

The judges questioned whether Obamacare could be invalidated only in the 18 states that brought the lawsuit, while remaining valid in the rest of the country.

Douglas Letter, arguing for the now-Democratic controlled House of Representatives, later jumped on Flentje’s ambiguous responses, saying that the Justice Department’s position makes no sense. It would be impossible to divide up certain provisions by state, pointing out one that makes it easier to bring to market lower-cost versions of certain complex drugs.

The attorney for the House also stressed that he did not want the case to be sent back to the district court, saying that at a minimum the appellate court judges could strike down the individual mandate but uphold the rest of the law.

5:10 p.m. ET, July 9, 2019

California Attorney General's office: "We will fight the administration tooth and nail"

The California Attorney General's office says it is prepared to fight to defend the Affordable Care Act.

“We will fight the administration tooth and nail and stand ready for whatever comes next,” the attorney general's spokesperson Sarah Lovenheim told reporters outside after the hearing.

Attorney General Xavier Becerra is leading a coalition of 20 states and Washington, D.C. to advocate for the bill to stay.

“Today we saw an administration pressed to explain why affordable health care and American lives should be put at risk,” Lovenheim said.

She continued that if the ACA was removed, it would create chaos in the health care system.

“If they have their way millions of Americans could be forced to delay, skip or forgo potentially lifesaving health care all together,” she said.

5:10 p.m. ET, July 9, 2019

Here's what Texas' solicitor general said about the ACA in court today

Courtesy of Carol Peebles 
Courtesy of Carol Peebles 

Lawyers from the Trump administration and a group of Republican states squared off today against attorneys from a coalition of Democratic states and the House of Representatives in a New Orleans appeals court to argue the fate of the Affordable Care Act.

Texas Solicitor General Kyle Hawkins argued in court that the ACA forces people to buy insurance or pay a penalty.

“The Affordable Care Act has what amounts to an inseverability clause because the penalty is essential to drive people to buy insurance,” Hawkins said.

The plain text of the 2010 law, he said, is a “commandment to the American people.”

Hawkins would not be able to say what Congress intended when it acted in 2017 to axe the individual mandate, however.

“I’m not in a position to psychoanalyze Congress," he said.

Hawkins went on to say that “what happened in 2017 … is that Congress took away” the part of Chief Justice John Roberts’ opinion calling it a tax. Because of what Congress did, Roberts’ base holding that the law is OK because it’s a tax, is now “irrelevant," he said.

4:55 p.m. ET, July 9, 2019

Texas attorney general: Trump's tax overhaul "rendered Obamacare unconstitutional"

Texas Attorney General Kenneth Paxton (2nd R) speaks to members of the media as former Texas Solicitor General Scott Keller (R) listens in front of the US Supreme Court April 18, 2016 in Washington, DC
Texas Attorney General Kenneth Paxton (2nd R) speaks to members of the media as former Texas Solicitor General Scott Keller (R) listens in front of the US Supreme Court April 18, 2016 in Washington, DC Alex Wong/Getty Images

The Texas Attorney General's office put out a statement following today's hearing:

Today, on behalf of Attorney General Ken Paxton and a coalition of 18 states, Texas Solicitor General Kyle Hawkins argued at the U.S. Court of Appeals for the Fifth Circuit, urging that court to uphold a U.S. district court’s ruling declaring Obamacare unconstitutional in its entirety. During today���s arguments, Hawkins explained that when Congress enacted President Trump’s tax overhaul, it rendered Obamacare unconstitutional by doing away with the burdensome tax penalty for violating Obamacare’s individual mandate, which the U.S. Supreme Court previously held was the only constitutional basis for the law.

In court today, lawyers from the Trump administration and a group of Republican states squared off against attorneys from a coalition of Democratic states and the House of Representatives. The Republican coalition was led by Paxton.

4:40 p.m. ET, July 9, 2019

There is one Dem-appointed judge on the panel. She did not ask questions.

Judge Carolyn Dineen King, an appointee of President Jimmy Carter, asked no questions during today's hearing.

The questions came from the two GOP appointees: Judge Jennifer Elrod, a George W. Bush appointee, and Judge Kurt Engelhardt, a Donald Trump appointee.

Engelhardt also suggested the overall issue is a question best left for Congress and the White House.

“There is a political solution here” that the parties want the courts to solve, he said. The courts should not be a “taxidermist” for ever big-ticket law Congress passes, Engelhardt added.

Without mentioning the political aspects that the House is now controlled by Democrats and the Senate remains under the GOP, he pressed the issue of the Senate not being in the courtroom.

“There’s sort of an 800-pound gorilla that that isn’t here,” Engelhardt said.
4:42 p.m. ET, July 9, 2019

Republican-appointed judges suggested they could side with lower court that struck down Obamacare

Two Republican-appointed judges on the appeals panel today suggested that they might side with a lower court judge who said last year that the whole Obamacare law should be struck down.

Keep in mind: This is a three-judge panel, meaning two of the judges will control the ruling.

About the two sides: Lawyers from the Trump administration and a group of Republican states squared off against attorneys from a coalition of Democratic states and the House of Representatives.

And about the judges: Three 5th US Circuit Court of Appeals judges — one nominated by President Donald Trump, one by George W. Bush and one by Jimmy Carter — heard the arguments. Because the case is before one of the most conservative appellate courts in the country, it is almost guaranteed to wind up in the Supreme Court.

4:18 p.m. ET, July 9, 2019

Attorney for Democratic-led House argues Texas and other states are exaggerating the impact of the law

Douglas Letter, arguing for the now-Democratic controlled House of Representatives, said that Texas and other states are exaggerating the impact of the law President Trump signed in 2017 eliminating the mandate.

Texas, he said, created a new excuse to challenge a law it doesn’t like that was upheld in 2012.

“Texas said, ‘Ha! — you just did something unconstitutional,’” Letter said.

Even though the tax penalty is now zero dollars, Letter argued, the choice people has still exists: buy insurance or don’t.

“The Supreme Court said unequivocally. …Either you shall maintain health insurance or incur a tax,” he said. Only the number has changed.

“That means the choice is still there,” he said. In fact, “there’s less coercion than there was before” to buy insurance.

5:10 p.m. ET, July 9, 2019

Judge suggest eliminating individual penalty jeopardized basis for entire law

Speaking about the Affordable Care Act, Judge Kurt Engelhardt, a President Trump appointee, asked, “If you no longer have the tax, why is it still constitutional?”

He noted that Congress could have included a severability clause to ensure that while the individual mandate was eliminated, it wanted the rest of the law to remain.

“Instead, they did the opposite, he said. 

Samuel Siegel, California's deputy solicitor general, said that in fact, because Congress only acted on the mandate, it didn’t want the rest to be touched.

“The entire Affordable Care Act can cooperate without the individual mandate,” he said, noting that some lawmakers were clear they only wanted to act on the tax. Congress, he noted, failed in other attempts to kill the entire bill. 

Siegel did not mention the Senate vote where the late Arizona Republican Sen. John McCain cast the deciding vote to end the bill to repeal most of Obamacare, but Trump has consistently mentioned that as he promotes ongoing efforts to gut the law.