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Texas seeks to overturn Affordable Care Act: Attention focuses on a potential swing judge

EMMA PLATOFF | 7/14/2019, 10 a.m.
On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, ...
Congressman Colin Allred stands on the steps of the U.S. Capitol July 9 with his congressional colleagues holding photos of constituents that would lose health care or be harmed if the federal lawsuit against the Affordable Care Act succeeds. U.S. House of Representatives

The Texas Tribune

NEW ORLEANS – On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, a nominee of Donald Trump; and in the center sat Judge Jennifer Walker Elrod, the George W. Bush appointee expected to represent the critical swing vote on a three-judge panel now charged with deciding the constitutionality of the Affordable Care Act.

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the U.S. 5th Circuit Court of Appeals to strike down the sweeping health law known as “Obamacare,” a legal means to a political end that has eluded conservatives for the better part of a decade.

Texas won a major victory in its bid to end the law in December, when a federal district judge in North Texas sided with the state, declaring that the law is unconstitutional in its entirety after Congress in 2017 gutted one of its important provisions, a tax penalty for individuals who chose to remain uninsured. The U.S. Department of Justice, in a highly unusual move, has declined to defend the law.

A California-led coalition of blue states that has stepped in to oppose Texas in the lawsuit quibbles with that question of “severability,” arguing that even if one slice of the law must fall as unconstitutional, its other hundreds of provisions – including a host of popular patient protections – should stand. The question of how much of the law may rightly be salvaged was a focal point of court discussions Tuesday.

Texas’ odds of total vindication remain in question after nearly two hours of questions before the three judges.

Most of the unusually large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing – whether they have the right to participate in the lawsuit at all. And she appeared highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration.

Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.

The Senate, Engelhardt remarked, “is sort of the 800-pound gorilla that’s not in the room.”

King, meanwhile, did not speak at all.

The panel is expected to rule in the coming weeks, when an appeal from the losing side is all but guaranteed. But there likely will be no immediate impact on health coverage: The federal government will continue to enforce the law pending “final resolution of this case,” August Flentje, a Justice Department lawyer, said Tuesday.