NEW ORLEANS—A panel of federal appellate judges on Tuesday hinted they will rule that the Affordable Care Act's so-called individual mandate is unconstitutional, but seemed skeptical that the entire healthcare law should fall because of that provision.
Although a coalition of Democratic state attorneys general defended Obamacare before the 5th U.S. Circuit Court of Appeals, two Republican-appointed judges on the three-judge panel ripped into their argument that the individual mandate is now a choice rather than a command since Congress zeroed-out its penalty for not buying insurance in 2017.
Judge Jennifer Elrod pointed to Chief Justice John Roberts' opinion in a 2012 Supreme Court case that she said stated the most natural reading of the individual mandate was as a command to buy insurance. When California's deputy attorney general Samuel Siegel said individuals who forgo insurance would experience no consequences, Elrod retorted that those individuals would be "violating the law."
Although Siegel maintained that Congress did not want the ACA to fall when it ended the individual mandate penalty and left the rest of the law on the books, Judge Kurt Englehardt shot back that Congress was limited in what it could do through the budget reconciliation process. He also questioned why Congress never adopted a "severability clause."
Elrod suggested the 2017 Congress may have believed that zeroing-out the mandate was the key to nixing the rest of the healthcare law, given they were aware that the mandate would no longer be a tax when zeroed-out.
But Elrod still had questions for the Republican attorneys general seeking to invalidate the law. She probed Texas solicitor general Kyle Hawkins' argument that the individual mandate is "inseverable" from all other ACA provisions, even the minor ones such as provision requiring chain restaurants to include calorie counts on their menus.
"What would you say to someone who says it's absurd that it's not severable from restaurant calorie guidelines?" she asked.
Elrod also asked each side to address whether they had standing to bring or defend against the case.
Judge Carolyn King, the lone Democratic appointee on the panel, did not ask either side any questions.
Several Republican state attorney generals successfully argued in a federal district court in Texas that the individual mandate is unconstitutional and could not be severed from the rest of the ACA. When the Justice Department declined to defend Obamacare, Democratic state AGs and House representatives stepped in to appeal the lower court's decision invalidating the law.
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.
Englehardt asked why the Senate wasn't defending the law or present in the case to explain its intent back in 2017, calling the Senate's absence "sort of the 800-pound gorilla not in the room." He also asked why the House couldn't get around the severability question by passing the various ACA provisions piecemeal.
"And obviously the president would sign that, right? No, obviously not," Letter quipped.
Elrod pressed August Flentje, attorney with the U.S. Justice Department, to clarify the federal administration's position, which has shifted during the life of the lawsuit.
"Our position is the entire act is not severable," he said, but added that the judgment should be limited to the provisions that injure the Republican states. It was unclear from his statements if the federal government believes the ACA should be struck down in only some states and be left alone in others. That is what the government seemed to state in its supplemental briefing filed last week.