Appeals court: Part of ‘Obamacare’ is invalid, but more review is needed

NEW ORLEANS — A federal appeals court on Wednesday struck down “Obamacare’s” now-toothless requirement that Americans carry health insurance but sidestepped a ruling on the law’s overall constitutionality. The decision means the law remains in effect for now.

The 2-1 ruling handed down by a panel of the 5th U.S. Circuit Court of Appeals in New Orleans means the ultimate fate of the rest of the Affordable Care Act including such popular provisions as protections for those with pre-existing conditions, Medicaid expansion and the ability for children under the age of 26 to remain on their parents’ insurance remains unclear.

The panel agreed with Texas-based U.S. District Judge Reed O’Connor’s 2018 finding that the law’s insurance requirement, the so-called “individual mandate,” was rendered unconstitutional when Congress, in 2017, reduced a tax on people without insurance to zero.

The court reached no decision on the big issue — how much of the Affordable Care Act must fall along with the insurance mandate.

“It may still be that none of the ACA is severable from the individual mandate, even after this inquiry is concluded. It may be that all of the ACA is severable from the individual mandate. It may also be that some of the ACA is severable from the individual mandate, and some is not,” Judge Jennifer Elrod wrote.

The decision sends the case back to a judge who already ruled once to throw out the entire ACA but with some guidance. O’Connor has to be more specific about which parts of the law can’t be separated from the mandate, and also must take into account Congress’ decision to leave the rest of the law essentially unchanged when it reduced the penalty for not having insurance to zero, Elrod wrote.

In dissent, Judge Carolyn Dineen King said her colleagues were prolonging “uncertainty over the future of the healthcare sector.” King would have found the mandate constitutional, although unenforceable, and would have left the rest of the law alone.

California Attorney General Xavier Becerra, who is leading state efforts to defend the law, promised a quick appeal to the Supreme Court.

“For now, the President got the gift he wanted -- uncertainty in the healthcare system and a pathway to repeal -- so that the healthcare that seniors, workers and families secured under the Affordable Care Act can be yanked from under them,” Becerra said in a statement.

Attorney General Ken Paxton of Texas, which spearheaded the lawsuit seeking to throw out the ACA, applauded the court’s decision to declare the mandate unconstitutional.

“As the court’s opinion recognized, the only reason the Supreme Court upheld Obamacare in 2012 was Congress’ taxing power, and without the individual mandate’s penalty that justification crumbled,” Paxton wrote.