A federal appeals court in New Orleans heard oral arguments on Tuesday in the lawsuit challenging the constitutionality of the Affordable Care Act now that Congress has zeroed out the law’s penalty for individuals who fail to buy insurance.
Legal experts, including those who oppose the health care law, have been skeptical about the merits of the suit, but two Republican-appointed judges on the three-member appeals court panel questioned whether Obamacare should be allowed to stand. If they uphold a lower court ruling invalidating the law in its entirety, the decision would almost certainly bring the ACA back before the Supreme Court — but it could push the messy U.S. health care system into even greater chaos, creating widespread uncertainty for millions of Americans who stand to lose coverage.
“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,” writes Margot Sanger-Katz at The New York Times. “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.”
In other words, President Trump and the GOP should be careful what they wish for. “If Trump gets what he’s hoping for in New Orleans, there’s a strong argument to be made that the president will be like the proverbial dog that catches up with the truck,” The Washington Post’s James Hohmann writes. “Health care – the issue that dogged Republican candidates in the 2018 midterms more than any other – would almost certainly take a starring role in the 2020 campaign. The Supreme Court would probably then hear an appeal, in which [Chief Justice John] Roberts would probably again cast a deciding vote – one way or another – in June of an election year.”
Republicans are already squirming uncomfortably about the prospect of having the health care issue thrown back in their laps. Hohmann and others pointed out that Senate Majority Leader Mitch McConnell refused to say Tuesday whether he supports the legal challenge against the ACA, instead emphasizing that, if the law is struck down, GOP lawmakers would act quickly to restore protections for patients with pre-existing medical conditions. But as Bloomberg’s Sahil Kapur points out in a tweet, “This sounds fairly starry-eyed when 1) there’s no plan, 2) ACA battle is rooted in a partisan dispute over how to handle preex conditions.”
