CHARLESTON, W.Va. — Attorneys for parties working to keep former President Barack Obama’s health care law in place faced tough questions in a federal courtroom on Tuesday.
Judges of the 5th U.S. Circuit Court of Appeals in New Orleans intensely questioned attorneys representing 20 states, Washington, D.C., and the House of Representatives on the constitutionality of the health care law and its individual mandate.
Eighteen Republican states — including West Virginia — and the U.S. Department of Justice support a December verdict in which Judge Reed O’Connor ruled the law was unconstitutional in light of Congress’ elimination of the individual mandate in the 2017 tax law. The provision required people to purchase insurance coverage or pay a penalty, but Congress later zeroed it out.
The states last year brought forward a lawsuit challenging the law. The Justice Department announced its support of the judicial decision in March after previously refusing to defend “Obamacare” in court.
The U.S. Supreme Court is expected to eventually consider the matter. If “Obamacare” is struck down, it could mean an end to insurance coverage for an estimated 20 million people and the millions of dollars states receive for health care programs.
The Democratic states argued Congress had no intention of repealing the entirety of the 2010 statute through the tax law. Appellate Judge Jennifer Elrod, a President George W. Bush appointee, questioned if there were lawmakers who used the Tax Cuts and Jobs Act as a “silver bullet” to dismantle the entire health care law.
Samuel Siegel, who is representing the Democratic states, noted several lawmakers who backed the tax law but also wanted provisions of “Obamacare” to remain intact, including protections for people with pre-existing conditions as well as subsidies.
“That would mean they were misleading the American public and their constituents when they said those things,” he said.
Judge Kurt Engelhardt took notice of the House’s involvement in the lawsuit, as the Senate is not intervening in the matter.
“Shouldn’t we also question why the Senate isn’t here to talk about the intent? The will of Congress would necessarily implicate the Senate, wouldn’t it? Why wouldn’t they be here to make the arguments you’re making,” he asked.
“They’re sort of the 800-pound gorilla that’s not in the room,” the appointee of President Donald Trump later said.
Engelhardt also asked if Congress could fix the issues on its own.
Judge Carolyn Dineen King did not ask any questions. President Jimmy Carter appointed her to the bench.
Texas Attorney General Ken Paxton, who is leading the Republican coalition, called the individual mandate the “centerpiece” of the health care law. He also said Congress’ elimination of it makes “Obamacare” unconstitutional.
“‘Obamacare’ resulted in higher costs, fewer choices, and power imbalance between the people and their government. The Founders of this great country intended a form of federalism that allows the people of each state to decide such matters as what type of health care system they want,” he said. “Today, Texas seeks to preserve that federalism. We can and will do better than Obamacare for all Texans.”
Paxton added if the Affordable Care Act is struck down, lawmakers can craft programs to better fit their respective states.
“This includes protecting preexisting conditions, which Texas and a majority of the other states protected before Obamacare was signed into law,” he said.
West Virginia’s uninsured rate decreased after “Obamacare” went into effect; the rate fell from 14% in 2013 to 5.3% in 2016 before increasing to 6.1% in 2017. More than 155,000 West Virginians are enrolled in the state’s expansion of Medicaid.
Premiums have increased in West Virginia in recent years; according to the Kaiser Family Foundation, the average premium went from $281 in 2014 to $596 this year, a 112% increase.
State Attorney General Patrick Morrisey noted increasing premiums as one reason for backing the lawsuit.
“We absolutely must protect people with pre-existing conditions, but we also must get down the soaring premiums of ‘Obamacare,'” he said.
Congressional Democrats held multiple events in Capitol Hill in opposition to the legal challenge; Senate Minority Leader Chuck Schumer, D-N.Y., called out Republicans for doing nothing to defend the health care law’s provisions.
“If the right-wing lawsuit succeeds, millions will lose health care, over 100 million would lose pre-existing condition protections and Americans from one coast to the other will lose the peace of mind that at least there is something there if, God forbid, they or a loved one gets a serious illness,” he said.
Sen. Joe Manchin, D-W.Va., spoke alongside Schumer about the lawsuit’s possible impact.
“I wasn’t here when the Affordable Care Act was passed. I was the governor of the state of West Virginia. I know what we had and didn’t have in West Virginia before the Affordable Care Act,” he said. “I didn’t think it was the perfect piece of legislation. I don’t think anybody thinks that it was perfect, but we all think we have to repair it.”
Manchin, who led efforts to get the Senate Legal Counsel involved in the lawsuit, addressed Trump, saying he would be willing to call any legislation fixing the current health care system “Trump Repaircare.”
“I’m happy to support Trump Repaircare, not Trump Throw-it-away because you made a political promise. I’m sorry because we can do better,” he said.
Manchin also criticized Morrisey for his involvement in the lawsuit; during last year’s U.S. Senate race, Manchin attacked Morrisey — the GOP candidate — for the lawsuit.
“The same person that ran against me for the United States Senate in a state where Donald Trump won by 42%. You tell me it’s not personal to the people of West Virginia and all over America. And I hope they listen and listen closely,” he said.
California Attorney General Xavier Becerra is leading the Democratic states in the lawsuit. He said the Trump administration is putting American lives at risk by arguing for striking the law down.
“If they have their way, millions of Americans could be forced to delay, skip or forego potentially life-saving health care,” he said. “Our state coalition made it clear: on top of risking lives, gutting the law would sow chaos in our entire healthcare system. We will fight the Trump administration tooth and nail.”
The Department of Justice said last week it would continue to enforce the law until a final decision on its constitutionality is made.