Obamacare defenders face judges’ skeptical barrage

NEW ORLEANS — A federal appeals court seemed inclined Tuesday to rule that the core provision of President Barack Obama’s signature health care law is unconstitutional.

Two Republican-appointed judges on a three-judge panel of the 5th U.S. Circuit Court of Appeals peppered lawyers defending the law with skeptical questions, appearing to suggest that they might hold that when Congress zeroed out a tax imposed by the law in 2017, it rendered unconstitutional the mandate for the purchase of health insurance.

It was less clear after the arguments whether the judges also would invalidate the entire health care law, as the Trump administration favors.

The hearing marked the latest development in a 2018 lawsuit by 18 Republican-leaning states claiming that the absence of a tax converts the law into an unconstitutional directive to U.S. citizens to buy a product.

A lower-court judge ruled in December that it did and that the entire law must fall as a result.

That includes popular provisions such as protection for pre-existing conditions.

As Judge Jennifer Walker Elrod questioned the law’s supporters, attorneys for 20 Democratic-leaning states and the House of Representatives, she said the law’s “command” that people buy insurance appeared intact without the tax penalty, and she questioned the mandate’s constitutionality.

Judge Kurt Engelhardt seemed to agree. And he pointedly suggested that the courts shouldn’t have to work out what parts of the law should or shouldn’t survive.

“Congress can fix this,” he said at one point.

It was unclear when the panel will rule. The case is likely headed to the Supreme Court, where the same five-justice majority that has twice voted to uphold the law, in 2012 and 2015, remains in place.

The ultimate outcome will affect protections for people with pre-existing conditions, Medicaid expansions covering roughly 12 million people and subsidies that help about 10 million others afford health insurance.