President Barack Obama’s legacy legislation that granted access to affordable healthcare coverage to tens of millions of Americans could soon be struck down as unconstitutional, The New York Times reported this week.
On Tuesday, a panel of three appeals court judges appeared poised to uphold a lower-court ruling that the Affordable Care Act’s mandatory coverage requirement is unconstitutional, opening the door to striking down the law altogether.
The two Republican-appointed judges on the panel — Jennifer Walker Elrod, appointed by President George W. Bush in 2007, and Kurt Engelhardt, appointed by President Trump in 2018 — seemed to favor tossing the law out entirely.
The Trump administration has waffled on whether it will defend the healthcare law in court, initially refusing to defend the law in its entirety and saying “only its provisions protecting people with pre-existing conditions should be struck down.”
But earlier this year, the administration shifted to agree that entire law must be struck down as unconstitutional after Congress eliminated penalties for failing to obtain insurance coverage.
The Supreme Court previously ruled the mandate to be constitutional under Congress’ authority to levy taxes, but now that the penalty is gone, advocates for dismantling the law say everything must go.
The Times noted that Justice Department lawyers seemed less than prepared to answer questions from the judges, including how they would move forward should they get their way.
For example, the Trump administration has taken the position that the healthcare law should only be struck down in full in the 18 states that brought the lawsuit in the first place, leading a lawyer for Texas to question whether the Republican-controlled states had “been the victim of a bait and switch.”
Further, Justice Department lawyers were unable to explain how it would work to repeal the law only in the plaintiff states rather than nationwide.
Also head scratching? The Trump administration now says “that some pieces of the health law, though not its insurance provisions, should be preserved.”
Still, if the ACA is scrapped entirely, the affects would be immediately devastating for tens of millions of Americans, the Times noted:
Insurers would also no longer have to cover young adults under their parents’ plans up to age 26; annual and lifetime limits on coverage would again be permitted; and there would be no cap on out-of-pocket medical costs people have to pay.
Also gone would be the law’s popular protections for people with pre-existing conditions, which became a major talking point in last fall’s midterm elections, as Democratic candidates constantly reminded voters that congressional Republicans had tried to repeal the law in 2017.
The nonpartisan Kaiser Family Foundation estimates that about 52 million adults aged 18 to 64 would be denied health insurance coverage if the country returns to industry practices that were in place prior to the ACA.