Two Republican-appointed judges on the U.S. Court of Appeals for the Fifth Circuit hammered Democrats' arguments Tuesday on whether the Affordable Care Act's individual mandate was severable from the rest of the law and asked why Congress expected them to fix it in the latest legal challenge to the constitutionality of the Obama-era law.
The two Republican-appointed judges, Jennifer Elrod, and Kurt Englehardt, lobbed multiple questions at all the parties' lawyers, while the panel's lone Democratic appointee, Carolyn King, didn't ask any questions at the argument.
The appeals court may issue a ruling as early as this fall, but the judges' questions didn't indicate a clear direction about how the panel is likely to rule. And that court isn't likely to be the last stop for the case, which is expected to head to the U.S. Supreme Court.
The law has lasted for nearly a decade despite Republican efforts to upend it, including legal challenges that went all the way to the high court, congressional attempts to repeal it and executive orders aimed at weakening it under the Trump administration.
The judges' questioning suggested they did not want to be catching this political football.
"There's a political solution here that you ... are asking the court to roll up its sleeves and get involved in," Englehardt said.
"Why does Congress want the Article III judiciary to become the taxidermist for every big game legislative accomplishment it achieves?," Englehardt, who was appointed by President Donald Trump, asked. "Congress can fix this," he said.
"Isn't the House the best entity to remedy [this]," he asked Douglas Letter, counsel for the Democrats in the U.S House of Representatives, which intervened in the case to defend the law. "Can't they put together a sort of cafeteria style package of all these individual features that are so attractive and popular in various quarters? They could vote on this tomorrow ... boom, boom, boom, and root out the issue of severability."
Texas, joined by 17 other states, sued the federal government over the ACA in 2018. Trial judge Reed O'Connor of the U.S. District Court for the Northern District of Texas invalidated the entire law late last year, finding that because Congress zeroed out the law's individual mandate penalty in 2017, the entire law became unconstitutional. That's linked to a 2012 Supreme Court ruling in which the high court upheld the law based on its penalty or tax status.
If the ACA falls, that could spell the end of many politically popular provisions of the law, including protections for those with pre-existing conditions, certain free preventive services and coverage for dependent children up to the age of 26, with no plan in place to deal with the fallout.
Hospital and insurer stocks have been volatile with past negative decisions potentially undermining the law, though shares were little changed Wednesday. Managed care organizations that have an outsized presence in the exchanges like Centene and Molina would be devastated if the ACA were repealed. Hospitals generally benefited from the ACA as well, as more patients got coverage through states that expanded Medicaid.
The Democratic-led states and House stepped in to defend the ACA after the federal government dropped its defense of the law in March, saying it largely agreed with the trial court's decision.
Texas Solicitor General Kyle Hawkins, arguing for the Republican plaintiff states, told the panel Congress' 2017 tax overhaul, which took away the tax penalty for not purchasing insurance, rendered the entire ACA unconstitutional because the Supreme Court had earlier upheld the law solely on the basis of the taxing power.
But Samuel Siegel, California's deputy solicitor general, told the panel the ACA could continue without the tax penalty.
"The entire Affordable Care Act can operate without the individual mandate," he said.
And Letter, who argued on behalf of the Democrats in the House of Representatives, also urged the panel to save the law.
Even if the individual mandate is gone, instead of tossing the entire law as unconstitutional, courts are required to "save everything you can unless it is evident Congress didn't mean that and would've preferred no statute," he said.
But Elrod, appointed by President George W. Bush, seemed skeptical of that argument, saying the statute has since changed and the reading he was urging might not apply anymore.
And if the law is struck down, even August Flentje, a Justice Department attorney, admitted sorting out the aftershocks would be an enormous task.
"It's complicated," he told the panel.
Following the oral arguments in New Orleans, a spokesman for California Attorney General Xavier Becerra said they are "optimistic that the court will see through the Trump administration's empty rhetoric."
But some backers of the law said it did not look good for the Democrats.
A columnist for the liberal Center for American Progress Think Progress blog who attended the arguments said it did not go well for the Democrats.
"Short news is it went very badly," Ian Millhiser tweeted.
Robert Henneke, the attorney representing the two individual plaintiffs who sued for being forced to buy ACA compliant plans, argued that Tuesday's arguments went well for his side, and predicted the court would uphold the lower court's decision.
"It’s not the job of the courts to rewrite the Affordable Care Act in a way that makes it constitutional," Henneke said from New Orleans after the court hearing.
While no one has a crystal ball and the Fifth Circuit's ruling is — at a minimum — months away, at least one legal scholar told Healthcare Dive the panel might wind up sending the case back to the trial court for further clarification.
The panel seemed focused on "how it might send the case back to the district court to analyze remedy," Abbe Gluck, a law professor and the faculty director of the Solomon Center for Health Law and Policy at Yale Law School, told Healthcare Dive.
The panel didn't seem eager "to have to answer the very difficult questions about remedy," she said. "It was focused on asking why Congress could not and did not fix the problem — the answer of course is politics and the president's refusal to support ACA reforms," she said.