A federal judge in Texas heard arguments Wednesday in a case aimed at doing what the Republican Congress has not yet been able to do — dismantle the Affordable Care Act.
The suit hinges on the change to the individual mandate as a part of the tax overhaul President Trump signed into law in December, which zeroed out the requirement that most Americans have health insurance or pay a fine.
The GOP plaintiffs also sought a “preliminary injunction” of the law, which would mean the law would be suspended while the case is decided. The judge has not made a decision on the injunction yet.
Judge Reed O’Connor, a conservative jurist appointed by George W. Bush, heard arguments from GOP plaintiffs, the Justice Department and 17 Democratic attorneys general, with the bulk of his questions going to the defendants of the law.
The lead Democrat arguing the case, California attorney general Xavier Becerra, cautioned against ending the law, even temporarily, as it “would wreak havoc in our health care system.”
The case was filed in February by 18 GOP attorneys general and two GOP governors. They argue the Supreme Court upheld the individual mandate in 2012 as a part of Congress’s authority to tax. Now that the mandate carries no penalty, it can no longer be justified as a tax and should be struck down. And without the mandate, the rest of the law crumbles, including the law’s arguably most popular requirement, that insurers must cover people with pre-existing conditions at no extra cost.
Legal scholars across the political divide believe this is a weak argument, but the case could be the first to go before the more conservative Supreme Court.
Although the Trump administration is technically the defendant in the case, the administration announced in June it would not defend the law. The Justice Department wrote in its filing with the case that it did not think the entire law needed to be eliminated, but it did agree the protections for preexisting conditions should be eliminated January 1, 2019, when the tax penalty goes away.
Filing a case that could put protections for those with pre-existing conditions at risk has already had some political fallout for Republicans, as Democratic candidates have started using it in their campaigns for Congress.
In response, a group of 10 Republican senators introduced legislations last month that prohibits insurance companies from denying coverage or charging more for a pre-existing condition. Democrats point out that the new legislation would not require insurer’s plans to cover treatment for those illnesses, as the Affordable Care Act currently does.
What all of this means is that this is once again a wait-and-see moment for the Affordable Care Act, a daunting concept with open enrollment and an election quickly approaching.