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Appellate court raises potential new threat to ACA

The Washington Post logo The Washington Post 6/26/2019 Yasmeen Abutaleb

Nancy Pelosi et al. smiling for the camera: House Speaker Nancy Pelosi  during a press conference about defending the Affordable Care Act after the Trump administration sided with a Texas judge who declared the ACA  unconstitutional. © Erik S Lesser/EPA-EFE/REX/Shutterstock House Speaker Nancy Pelosi during a press conference about defending the Affordable Care Act after the Trump administration sided with a Texas judge who declared the ACA unconstitutional.

A federal appeals court on Wednesday questioned whether more than a dozen Democratic states and the U.S. House of Representatives have the right to appeal a lower court decision that struck down the entirety of the Affordable Care Act, throwing the law’s future into question.

The U.S. Court of Appeals for the 5th Circuit, which is scheduled to begin hearing oral arguments on the constitutionality of the law on July 9, said it needed more information as to whether the House and Democratic states had standing to intervene in the lawsuit and whether their interventions were timely. Some legal experts said the request did not bode well for the future of former president Barack Obama’s signature domestic policy achievement.

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“This order suggests that the Fifth Circuit panel may be hostile to the ACA and inclined to support the red states,” Nicholas Bagley, a University of Michigan law professor, wrote on Twitter. “The odds that the Fifth Circuit does something nasty to the health reform law have gone up.”

Others said the court might simply be ensuring the House and Democratic states’ standing is valid and would be upheld by the Supreme Court in the likely event of an appeal.

“There are perfectly normal, understandable reasons why courts would ask these sorts of questions,” said Jonathan Adler, a law professor at Case Western Reserve University School of Law and a frequent critic of the ACA. But he added: “The order does add a little bit of uncertainty in this litigation.”

The Trump administration and 18 Republican-led states are defending a lower court decision in December that ruled all of Obamacare was unconstitutional after Congress zeroed out the penalty for the law’s so-called individual mandate in its 2017 tax overhaul, which requires most Americans purchase health insurance or pay a fine. The Supreme Court has twice upheld the law in 2012 and 2015.

If the 5th Circuit upholds the lower court ruling — which would almost certainly put it back in front of the Supreme Court — it would create a political and logistical mess for the Trump administration and Congress. Republicans repeatedly failed to repeal and replace Obamacare while they controlled both the House and the Senate in 2017 and have little appetite to revisit health reform.

“If a court decision came down quickly overturning the ACA, it would immediately catapult health care into the primary issue into the election,” said Larry Levitt, senior vice president of the Kaiser Family Foundation, a nonpartisan health policy organization. “The issue is now almost ten years old and has so many legal tentacles that it would take a long time and probably many additional lawsuits to figure out how to unwind it.”

Eleven of the 16 active judges on the 5th Circuit are Republican appointees, including five named to the bench by President Trump. The court has not yet announced which three judges will hear the ACA case.

The law extended health insurance to some 20 million Americans by creating markets where people without employer coverage could purchase coverage and through an expansion of Medicaid. It also prohibits insurers from discriminating against those with preexisting medical conditions and allows children to remain on their parents’ health plans until they are 26 years old, two of the law’s most popular provisions that Trump has said he would like to keep.

Democrats credit their defense of the ACA, particularly its popular consumer protections, with their ability to retake the House in the 2018 midterms, and joined the appeal defending Obamacare shortly after taking office.

yasmeen.abutaleb@washpost.com

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