A new Reuters/Ipsos poll shows that nearly 60 percent of likely voters across the nation want the Affordable Care Act to remain in place. Buzz60
On Friday, a federal judge fulfilled a wish conservatives have held for more than eight years by ruling the Affordable Care Act, also known as Obamacare, unconstitutional.
U.S. District Court Judge Reed O’Connor agreed with a group of 20 states with Republican governors or legislatures that argued the constitutionality of the law’s individual mandate dissolved when Congress removed the tax penalty for the uninsured.
In 2012, the Supreme Court upheld the law and its mandate requiring people purchase insurance on the grounds that it fell within Congress’ taxation power. O’Connor said when the tax penalty was removed so was the central argument upholding the 2010 law’s constitutionality. His ruling declared not only the individual mandate but the entire law unconstitutional.
That decision leaves Republican and Democratic lawmakers, as well as millions of Americans, wondering, “So, what happens now?”
For the immediate future, the answer is nothing. The ACA will remain in place while the law’s future is handled in the courts, a process could take months or years to resolve. People who bought coverage on the health care exchanges before Saturday’s deadline will be insured for 2019.
The legal battle
The Justice Department under President Donald Trump announced in June that it would not defend ACA’s individual mandate and other provisions, such as protections for people with pre-existing conditions, but asked that the law not be struck down in its entirety.
So, the Justice Department seems unlikely to appeal O’Connor’s ruling. But after the Trump administration dropped its defense of the ACA, a number of Democratic states, led by California, took it up. Those states intend to appeal Friday’s decision.
“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court. Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and well-being of all Americans,” California Attorney General Xavier Becerra said Friday in response to the ruling.
House Minority Leader Nancy Pelosi, D-Calif., has vowed that Democrats will intervene and direct House counsel to defend the ACA when they take control of the chamber next month.
The case would go the U.S. Court of Appeals for the 5th Circuit, which is dominated 11-5 by judges who were nominated by Republican presidents. Yale Law professor Abbe Gluck said the 5th Circuit will almost certainly grant a stay, keeping O’Connor’s ruling on hold pending their decision.
A three-judge panel for the 5th Circuit will then accept briefs and hear oral arguments in the case before giving their decision. From there, it’s possible the entire panel of 5th Circuit judges will ask to review the case.
“You’d be lucky if you had an opinion out of them before June,” Gluck said.
Whatever the 5th Circuit’s decision, one side or the other is almost certain to appeal. But Gluck said she believes the “current Supreme Court will not accept the case” if O’Connor’s decision is overturned because “the case is extremely weak on the law and I don’t think anyone on the court has the appetite for another politicized Obamacare showdown.”
If O’Connor’s ruling is upheld, on the other hand, the Supreme Court “will have to take the case.” Barring a rare special session to hear the case, Gluck said it is most likely the Court will hear arguments in the case in early October.
Gluck, who called the ruling “shocking” in a New York Times op-ed co-authored with Case Western Reserve University School of Law professor Johnathan Adler, expects the case will be overturned and never even make it the Supreme Court.
“This case turned on a very simple and established legal principle, which conservative and liberal judges alike…
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