Obamacare Had Another Bad Day In Court. Thats Pretty Alarming.

A legal challenge to the Affordable Care Act went before a panel of three federal judges on Tuesday and got a credulous, sympathetic-sounding hearing from the two judges who were appointed by Republicans.

Yes, it’s happening again.

This latest lawsuit, which comes from GOP state officials and has support from President Donald Trump , is the third major attack on the law’s constitutionality. In the past two cases, Republican conservatives and allies have won key battles in the lower courts  only to have the Supreme Court stymie them and leave most of the Affordable Care Act, which is now commonly known as “Obamacare,” standing.

That same scenario could play out again. Even if the panel from the 5th U.S. Circuit Court of Appeals rules against the Affordable Care Act, the Supreme Court could easily uphold the law on appeal.

And the case might never get that far. Comments from judges don’t always signal what they are thinking or how they will vote. The lone Democratic appointee on the panel is likely to reject the lawsuit, so it would take a vote in favor of the law by just one of the GOP appointees to preserve it.

A ruling against the law could also take different forms, including a decision that would send the case back to lower courts with instructions to reconsider.

But the mere possibility that the two Republicans would invalidate part, let alone all, of the Affordable Care Act is hard to fathom. The consequences of such a ruling would be devastating , and the underlying argument of the lawsuit is, according to a wide array of respectable legal experts , positively bonkers .

And yet, here we are.

20 Million Could Lose Insurance

Ending the Affordable Care Act would take away guarantees of coverage for people with pre-existing conditions, eliminate tax credits for people who buy health insurance on their own, and cut off federal support for expanded state Medicaid programs. 

In total, according to estimates by the Urban Institute, 20 million people would lose health insurance. Many, many more would lose protections like a prohibition on annual or lifetime benefit limits they might need in case of catastrophic medical issues.

This is pretty much the opposite of the “insurance for everybody” and “great health care” that Trump has repeatedly promised to deliver. Yet, one reason the case has gotten this far — prevailing in front of a conservative district judge whose decision prompted the appeal to the 5th Circuit — is that the federal government isn’t defending the law as it customarily would.

Instead, the Justice Department filed briefs on behalf of the plaintiffs a move that Trump reportedly ordered himself .

Democratic officials for California and 19 other states have since stepped in to defend the law and, after the 2018 midterm elections, Democrats controlling the House authorized their counsel to do the same. Their lawyers were in the New Orleans courtroom on Tuesday, as were the lawyers for the GOP state officials and Trump administration.

But their experiences were not the same.

The two Republican judges peppered the defense with tough questions. And while they also asked some tough questions of the plaintiffs, especially the one representing the Trump administration, several observers in the courtroom as well as some who listened to court audio afterward came away thinking that the two judges were figuring out how, not whether, to write a decision against the Affordable Care Act.

“They were asking the kinds of questions that you wouldn’t ask if you weren’t already persuaded by the plaintiff’s arguments … that either all or a substantial part of the ACA had to fall,” Nicholas Bagley , a University of Michigan law professor who helped write a brief for the case, told HuffPost on Tuesday evening.

It’s About A Command That Isn’t Actually A Command

Of course, oral arguments can be deceiving, as Bagley pointed out. In March 2012, observers of the first big legal challenge to Obamacare walked out of the Supreme Court convinced it was doomed. Three months later, the law mostly survived on a carefully worded, 5-4 vote in which Chief Justice John Roberts joined the four Democratic appointees.

The central issue in that case was the Affordable Care Act’s “individual mandate,” the financial penalty for people who didn’t buy insurance. The individual mandate is also the key issue in Texas v. United States, though the argument this time around is by nearly all accounts a whole lot more loopy.  

In 2012, the plaintiffs argued that the mandate was unconstitutional because it commanded people to get insurance, something Congress did not have the power to do. Roberts and liberal judges rejected that argument, saying a fair reading of the statute recognized the mandate not as a command, but a choice. People could get insurance or they could pay a fee, the court argued, and paying a fee is a perfectly valid exercise of the government’s right to levy taxes.

And that was the end of the story or so it seemed. But in 2017, Trump and the Republicans zeroed out the mandate penalty as part of broader tax cut legislation. As a result, Americans no longer face a choice between buying insurance and paying a fee. They face a choice of buying insurance and doing nothing.

It doesn’t take a fancypants law degree to see that the new scheme is, if anything, less intrusive than the old one a point that the attorneys for California and the U.S. House made several times. “There are no negative legal consequences for going without health coverage,” Samuel Siegel, California’s attorney, said Tuesday.

But Judge Jennifer Walker Elrod, who was appointed by former President George W. Bush, appeared to see things differently. If you don’t buy insurance, she said, then “you are violating the law.”

The Judges Sounded Like They Lived In Fantasyland

An even more telling exchange came later on, as the discussion turned to what is probably the most important part of the plaintiff’s case and also the weakest. Congress originally intended for the Affordable Care Act’s different pieces to work together, the plaintiffs said, and so if the mandate goes away, the rest of the law should, too.

Here again, it doesn’t take legal expertise to spot the biggest problem with this logic. Whatever Congress did or didn’t think when it passed the Affordable Care Act in 2010, it opted in 2017 to get rid of the mandate while allowing the rest of the law to stand.

There’s no mystery about this because it was less than two years ago, and the effects of no mandate on health insurance coverage came up in the debate not as a peripheral issue, but a central point of contention. 

But Elrod questioned whether the court could really divine congressional intent, either from the law itself or from the congressional record. At one point, she wondered aloud whether maybe some Republicans understood that repealing the mandate would undermine the Affordable Care Act’s constitutionality and voted to zero out the mandate as an act of cleverly disguised sabotage.

“How do we know some members didn’t say, ‘Ah-ha, this is the silver bullet that will undo the ACA, and so we’ll vote for this just because we know this will bring it to a halt because we understand the tax issue and it is no longer a tax?’” Elrod said.

This notion that congressional intent is mysterious is the part of the lawsuit that has drawn widespread derision from legal experts, including conservative and libertarian attorneys who helped construct and argue previous challenges to the Affordable Care Act.

Conspicuous among them is Jonathan Adler , a law professor at Case Western Reserve University, who has written and spoken extensively about the case and filed a brief with Bagley urging the courts to reject the lawsuit. 

He has called the case  “unmoored ” and “absurd .” 

A Ruling Against The Law Would Be A Conservative Coup

The other Republican appointee, Kurt Engelhardt, seemed less inclined to spin out fantasy scenarios. Instead, he questioned whether the 2017 tax cut vote really mattered because it took place during the budget reconciliation process, in which special parliamentary rules limited the scope of what Congress could do through legislation.

“Weren’t they in a reconciliation process?” he asked. “Weren’t they limited in what they could do in regards to the tax bill?”

Republicans were indeed limited in their ability to change the rest of the health care law. But that’s because they didn’t have the votes to do it. Just months before, prior to passing the tax cut, Republicans had tried desperately to pass legislation repealing the Affordable Care Act and they used the same reconciliation procedures to do it. They famously came up one vote short in the Senate when the late Arizona Republican Sen. John McCain gave a dramatic thumbs down.

Engelhardt, whom Trump elevated to the circuit court last year, wasn’t trying to make an argument in favor of the plaintiffs. But in raising the issue of reconciliation, he inadvertently did making clear that, by issuing a decision against the Affordable Care Act, courts would be accomplishing for Republicans what they could not (and still cannot) accomplish through Congress. This is precisely the kind of legislating that the courts are not supposed to do and that Republicans have spent so many years decrying as a matter of principle.

Some Republican-appointed judges take that notion seriously, which is one reason why the case might ultimately fail if not in the circuit court, then at some point later on in the Supreme Court. But it is no sure thing, which is why the Affordable Care Act and health insurance for tens of millions of people are suddenly in jeopardy again.