WASHINGTON — Democrats in Congress are warning that a looming court decision could upend the Affordable Care Act and leave millions of Americans without health insurance.
The case — argued Wednesday before the U.S. Court of Appeals for the Fifth Circuit in Louisiana — has put the fate of the Affordable Care Act on the line again. The lawsuit is on appeal after a district court sided with the plaintiffs and struck down the entire health care law as unconstitutional. The Trump administration has declined to defend the Obama-era law.
Arizona Attorney General Mark Brnovich is among the Republican officials in 20 states who filed suit in federal court to challenge the Affordable Care Act’s individual mandate.
Health care experts told lawmakers on the U.S. House Oversight and Reform Committee Wednesday that if that ruling stands, it could wipe out programs created by the 2010 health care law and shake up the entire health care system. The appeals court is expected to rule in the coming months.
“If this prevails and the entire Affordable Care Act is struck down, there will be catastrophic implications for millions of Americans in the entire U.S. health system,” House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.) said at the hearing on the issue. “I have often said that voting for the Affordable Care Act was the most important vote of my career.”
Nearly 20 million people nationwide who get health coverage through programs created under the law could lose coverage if the act is repealed, including about 297,000 people in Arizona, according to an analysis from the Urban Institute.
Eliminating the ACA could topple a host of healthcare provisions, including protections for people with pre-existing conditions, coverage for young adults on their parents’ health care plans through the age of 26, maternal care benefits, and even requirements for calorie counts on menus.
A group of red states filed the original challenge, Texas v. the United States, in February 2018, after Republican-led efforts to repeal the law in Congress failed. Some legal scholars thought the lawsuit would not go far, but U.S. District Court Judge Reed O’Connor sided with the plaintiffs in his ruling in December.
The lawsuit centers around the individual mandate penalty. Congress voted to scrap the penalty as part of the 2017 tax cut, and plaintiffs argue that move made the whole Affordable Care Act unconstitutional. The U.S. Supreme Court had previously upheld the mandate as a valid exercise of taxing power.
The mandate still exists, but Congress lowered the penalty for not purchasing health coverage to $0.
“The mandate is not constitutional … the very thing that saved the mandate, the tax, which is zero, does not exist,” Rep. Chip Roy (R-Texas) said at the hearing Wednesday. “This is not because it is a policy choice, it is a constitutional question about the power of this body and if it can mandate individuals buy something in the marketplace.”
Arguing to defend the law are 20 Democratic-led states and the counsel for the Democratic-led U.S. House of Representatives. They say that Congress clearly intended for the rest of the law to survive when it eliminated the penalty.
“What does it do to the power of Congress to strike down a 2,000-page piece of legislation over the one provision? I would not want to win that way even if I thought the ACA was the creature of the devil himself,” said Rep Jamie Raskin (D-Md.). “I would not support that because it is an absolute defeat of legislative power and a corruption of the rule of law.”
Some legal experts say it could be an overreach of the courts to strike down the law. A bipartisan group of 55 economic scholars filed an amicus brief in support of upholding the Affordable Care Act. And legal scholars who had been on opposite sides in the fight over whether to support other aspects of the Affordable Care Act came together to file a brief arguing that it goes against decades of precedent to strike down the entire law over one claim.
“This case is not difficult, and that is what makes it different,” Abbe Gluck, director of the Solomon Center for Health Law and Policy at Yale University Law School, told lawmakers. Gluck is one of the lawyers who worked on that brief. “One reason you see unprecedented consensus is the court is taking over congressional lawmaking power.”
The pending court case jolted the congressional debate on the merits of the health care law and of the possibility for a single-payer health care system. Republicans at the hearing argued health care premiums have skyrocketed and made it harder for people to get affordable care.
“It does not work and it is not going to work,” said Rep. Jody Hice (R-Ga.). “Insurance companies have fled the ACA marketplace. For every person who has benefited from Obamacare, we can find tons of people who have suffered.”
But Rep. Gerry Connolly (D-Va.) said Republicans are to blame for rising health care costs, because of changes that rolled back certain protections, like stabilization payments.
“Well Lord Almighty, now you tell me there is a cause and effect, but it is not the ACA but it is in fact the insidious, relentless drive to gut the ACA, which Republicans could not do legislatively but could do administratively and through amendments to the law,” Connolly said.
Democrats in Arizona took aim at Republicans over the lawsuit, including Brnovich and U.S. Sen. Martha McSally. Democratic National Committee Chairman Tom Perez defended the Affordable Care Act in a visit to Phoenix on Tuesday, blasting McSally for not supporting the health care law. Democrat Mark Kelly, who is running against McSally, announced voiced his opposition to the lawsuit, warning, “We cannot go backwards.”
Senate Majority Leader Mitch McConnell said Tuesday that Congress would restore pre-existing condition protections if the courts struck them down. But there is no guarantee lawmakers could come to an agreement on a plan after years of infighting.
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