CHARLESTON, W.Va. — Parties arguing on the constitutionality of former President Barack Obama’s health care law filed additional briefs Friday as they prepare to appear in a federal courtroom next week.
Judges with the 5th Circuit Court of Appeals in New Orleans will hear arguments on Tuesday regarding the constitutionality of “Obamacare.” A federal judge in December ruled the law unconstitutional because of Congress’ elimination of the individual mandate provision in 2017.
A group of 18 states, including West Virginia, are arguing the individual mandate is essential to “Obamacare,” referencing Supreme Court Justice John Roberts’ 2012 decision upholding the law. The U.S. Department of Justice also supports Judge Reed O’Connor’s decision from December.
A health care analyst told MetroNews in March if “Obamacare” is nullified, up to 18 million people nationwide would be unable to get insured again.
The court last week asked for supplemental briefs on if Democratic-led states and the House of Representatives can intervene in the lawsuit. The Justice Department on Wednesday said neither party has the authority to get involved in the lawsuit. The department added it will continue to enforce the health care law “pending a final judicial determination of the constitutionality of the individual mandate as well as the severability of the ACA’s other provisions.”
The Republican-led states, led by Texas Attorney General Ken Paxton, argued the intervening states have authority to intervene, but the House does not in light of a recent verdict regarding the Virginia House of Delegates and gerrymandering; the U.S. Supreme Court ruled in June the chamber did not have the standing.
Paxton noted the intervening states can appeal the December verdict because of an alleged threat of losing federal funds.
California Attorney General Xavier Becerra noted a similar argument in his side’s brief.
“The state defendants have restructured their health care systems in reliance on the ACA. Figuring out how to disentangle the Act from state regulatory regimes would be both disruptive and expensive,” he said. “States would have to spend millions of dollars reprogramming the way they determine who is eligible for Medicaid and issuing notices to those who no longer qualify.”
Becerra also said states would face “uncompensated care costs.”
“If given effect, the court’s decision would cause millions of people to lose their health care coverage,” he wrote. “And that would lead to the same vicious cycle that plagued the health care industry before the ACA was adopted: Newly uninsured individuals would seek belated care in emergency rooms, and hospitals would have to treat them without regard to their ability to pay.”
Jennifer Tolbert, director of state health reform at the Kaiser Family Foundation, told MetroNews funding associated with state Medicaid expansions would also be cut if “Obamacare” is ruled as unconstitutional.
“Not only would people lose coverage immediately, but the state would also lose the federal funding that came along with the expansion,” she said in March.
West Virginia expanded Medicaid in 2014. The state Department of Health and Human Resources tweeted Monday 160,463 West Virginians are enrolled in the state’s expansion.
Attorneys representing the House of Representatives said the states can intervene because of the possible effects associated with scrapping “Obamacare,” while the House’s authority to represent the federal government and defend the law.
The brief stated the Supreme Court previously recognized each congressional chamber can defend a statute when another agency of the government believes it is “inapplicable or unconstitutional.”
“A holding that the House lacks standing in those circumstances would disturb that longstanding balance between co-equal branches and would invite severe harm to our constitutional structure,” the attorneys said.
“In many cases in which DOJ declines to defend a federal law, there will not be a party (like the Intervenor States here) that can assert a cognizable injury. The only parties available to step in and defend the law will be the Houses of Congress. But if they lack standing to do so, all litigation decisions in defense of the law will be left to DOJ, despite its decision not to defend the law. DOJ could choose not to appeal if a district court decides to enjoin the law — foreclosing any appellate review of the district court’s decision.”
Arguments are scheduled for 1 p.m. Central time. The three judges who will hear the arguments were identified earlier this week: Carolyn King, Jennifer Elrod and Kurt Engelhardt. King is an appointee of President Jimmy Carter, Elrod is an appointee of President George W. Bush, and Engelhardt was named by President Donald Trump last year.
U.S. Sens. Joe Manchin, D-W.Va., and Shelley Moore Capito, R-W.Va., voted to confirm Engelhardt to the bench.