Judges’ Blunt Questions Hint At Skepticism Over Health Law: ‘If You No Longer Have The Tax, Why Isn’t It Unconstitutional?’

The New York Times: Appeals Court Seems Skeptical About Constitutionality Of Obamacare Mandate
A panel of federal appeals court judges on Tuesday sounded likely to uphold a lower-court ruling that a central provision of the Affordable Care Act — the requirement that most people have health insurance — is unconstitutional. But it was harder to discern how the court might come down on a much bigger question: whether the rest of the sprawling health law must fall if the insurance mandate does. In 90 minutes of oral arguments on whether a federal district judge in Texas was correct in striking down the Affordable Care Act in December, two appellate judges appointed by Republican presidents peppered lawyers with blunt questions while the third judge, appointed by President Jimmy Carter, remained silent. (Goodnough, 7/9)

The Washington Post: Appeals Judges Question Whether The ACA Can Stand Without Insurance Penalty
During oral arguments in a case with momentous stakes for consumers and politicians ahead of the 2020 elections, two members of a three-judge panel of the U.S. Court of Appeals for the 5th Circuit grilled lawyers representing Democratic-led states and the U.S. House to explain why the Affordable Care Act remains valid. “If you no longer have the tax, why isn’t it unconstitutional?” asked Judge Jennifer Walker Elrod, who was appointed by President George W. Bush. She and the other GOP appointee, Judge Kurt Engelhardt, named by President Trump last year, repeatedly noted that the law was written without an explicit feature guaranteeing that if one part were ever removed by Congress or the courts, the rest would remain in place. (Goldstein, 7/9)

The Wall Street Journal: Appeals Court Signals Peril For Affordable Care Act
California, leading 20 states defending the health law, argued the insurance mandate raised no constitutional problems because it is no longer enforceable without a penalty, making it more of a wish by Congress that people purchase coverage, not a command. “The individual mandate no longer requires anyone to do anything,” said California Deputy Solicitor General Samuel Siegel. Judges Elrod and Kurt Engelhardt, a Trump appointee, voiced doubts about that argument, saying the ACA still included language that requires people to carry coverage, penalty or not. Congress “left in place the mandatory nature of the mandate,” Judge Elrod said. (Kendall, 7/9)

Modern Healthcare: Appeals Court Shows Signs It Will Invalidate ACA Individual Mandate
Douglas Letter, general counsel for the House Democrats, made an impassioned argument that the Supreme Court in that 2012 case, known as NFIB v. Sebelius, which upheld the individual mandate as a tax, said "unequivocally" that the mandate is a choice, not a command. That choice remains even though the penalty was reduced to $0, he said. Still, he said the Republicans states need to show that Congress would have wanted the rest of the ACA struck down along with the mandate. Douglas insisted that under severability doctrine, the court must do what it can to save the statute. (Livingston, 7/9)

The Associated Press: Validity Of Obama Health Care Law At Issue In Appeal Hearing
It was less clear after the arguments whether the judges also would invalidate the entire health care law, as the Trump administration favors. The hearing marked the latest development in a 2018 lawsuit by 18 Republican-leaning states claiming that the absence of a tax converts the law into an unconstitutional directive to U.S. citizens to buy a product. A lower court judge ruled in December that it did, and that the entire law must fall as a result. That includes popular provisions such as protection for pre-existing conditions. (McGill and Santana, 7/9)

Politico: Appeals Court Skeptical Obamacare Can Survive
Judge Kurt Engelhardt, a Trump appointee, pointed out that Congress could settle the dispute over the health law’s future by immediately stripping out the individual mandate entirely, eliminating the basis for the lawsuit. He also questioned why the Republican-controlled Senate hasn’t weighed in on the lawsuit.“They’re sort of the 800-pound gorilla who’s not in the room,” Engelhardt said. (Demko, 7/9)

CQ: Federal Appeals Court Questions Legality Of Insurance Mandate
Justice Department attorney August Flentje faced questions about the administration’s approach to the law. He said the government would keep enforcing it until a final decision comes. Elrod asked about the possibility of striking down the law only in the states where officials joined the lawsuit. “That raises complicated issues and we are appreciative of the existence of the stay until there’s a final ruling,” Flentje said. (McIntire, 7/9)

Texas Tribune: Texas Asks Federal Appeals Court To Declare Obamacare Unconstitutional
Most of the unusually large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing — whether they have the right to participate in the lawsuit at all. And she appeared highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration. Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not. (Platoff, 7/9)

Bloomberg: Obamacare Mess Irks Judges. It’s Complicated, U.S. Lawyer Admits
“Why does Congress want the judiciary to be a taxidermist for every big-game legislative accomplishment it achieves?” the rookie on the panel, Kurt Engelhardt, an appointee of President Donald Trump, asked the lawyer representing the U.S. House of Representatives during a lively hearing in New Orleans. (Calkins, 7/9)

ABC News: Judges Grill Obamacare Defenders Over Individual Mandate
Legal analysts see three possible outcomes in the appeals case: the court could affirm the lower court ruling, striking down the individual mandate and the entire ACA as unconstitutional; it could invalidate the mandate alone and sever it from the rest of the law, leaving much of the ACA in place; or it could leave the law functioning as-is. "As it stands today, the Affordable Care Act presents a stand-alone command to buy an insurance product that the federal government deems suitable and it does so without raising even a dime of revenue," argued Texas solicitor general Kyle Hawkins. "The text of the ACA declares that mandate essential to the law and the goals that Congress wanted to achieve. " (Dwyer, 7/9)

CNN: Republican-Appointed Judges Appear To Side With Texas Challenge To Obamacare
If the challenge to the Affordable Care Act ... is upheld, it would do what Trump and a GOP-led Congress failed to accomplish in 2017: take down Obamacare. And while Trump has repeatedly said that people with pre-existing conditions, such as cancer and diabetes, would be covered even if the law is struck down, he has not issued any specific plans to do so. (Luhby, Berman and Biskupic, 7/9)

Los Angeles Times: Federal Appeals Court Appears Skeptical Of Obamacare, Putting Future Of Law In Doubt
That would set the stage for another showdown before the Supreme Court, which has twice in the last decade been called upon to rule on the landmark law, often called Obamacare. Such a ruling could also prolong uncertainty over the fate of health coverage for tens of millions of Americans who depend on the law for health insurance and other protections, including the ban on insurers denying coverage to people with preexisting medical conditions. (Levey, 7/9)

CNBC: Health Stocks Fall Before Arguments On Constitutionality Of Obamacare
U.S. District Judge Reed O’Connor of the Northern District of Texas ruled in December that the entire health law was unconstitutional because of the move by Congress in 2017 to eliminate the so-called individual mandate penalty. The mandate imposed a tax penalty on uninsured taxpayers and was considered a cornerstone of the ACA legislation. A coalition of Democratic state attorneys general, led by California’s Xavier Becerra, appealed the lower court ruling. The Justice Department later said it supported the federal judge’s ruling but has changed its position, slightly. (Lovelace, 7/9)

The Hill: Appeals Court Seems Unsure On Whether ObamaCare Mandate Is Constitutional
Robert Henneke, who represents a set of private business owners who are on the case as plaintiffs alongside the GOP states, said he was optimistic about the outcome. “Today’s arguments seem to have gone very, very well,” Henneke said in a phone call with reporters. (Weixel, 7/9)

CNN: How John Roberts's Signature Opinion Saving Obamacare Can Still Doom It
Chief Justice John Roberts saved Obamacare in 2012 by calling it a tax. Now, his core argument is helping power a Republican-led legal challenge that threatens to sweep away the entire law. ... Roberts, a 2005 appointee of Republican George W. Bush, forged a compromise in 2012 with the four Supreme Court liberal justices to uphold the signature domestic achievement of Obama. In dramatic moves behind the scenes, Roberts shifted multiple times in that landmark Obamacare challenge. After the 2012 case was argued, Roberts was part of a five-justice majority that wanted to strike down the individual insurance mandate. But he became wary of voiding a significant part of the law that was years in the making and reconsidered. (Biskupic, 7/10)

The New York Times: So You Want To Overturn Obamacare. Here Are Some Things That Would Be Headaches.
It’s not just that 21 million people would probably lose health insurance, or that 133 million Americans with pre-existing conditions would lose their protection. Those effects would be the major focus of attention if the Affordable Care Act were to be struck down. But the law was much, much broader, affecting a wide range of health programs, even some areas you might not think of as related to health. Overturning the entire law would mean all of its parts, in theory, would go away at once. (Sanger-Katz, 7/10)

PBS NewsHour: Why Current Court Battle Represents Existential Threat To Obamacare
John Yang talks to Axios' Sam Baker about the legal test and how the law's provisions extend beyond individual health insurance. (7/9)

The CT Mirror: Dems Aim To Turn Legal Attack On The ACA Into A Political Weapon
Democrats’ political embrace of the ACA with its protections for people with pre-existing conditions and its expansion of Medicaid — known as HUSKY in Connecticut — has been a long time coming. Controversy over the ACA, fueled by Tea Party opposition, cost Democrats politically in the years right after the law was passed in December of 2009. (Radelat, 7/9)