Judge skeptical Obamacare can stand without mandate tax

September 5, 2018

A federal judge in Texas was skeptical Wednesday about whether Obamacare should stand without an actual penalty for shirking insurance under its “individual mandate,” according to reports from the courtroom.

U.S. District Court Judge Reed O’Connor, presiding in Fort Worth had pointed questions for Democratic attorneys general who stepped in to defend Obamacare, after the Trump administration sided with 20 GOP-led states who said the program’s legality depended on the collection of a mandate tax, which will sink to zero next year.

The blue-state attorneys said Congress left the rest of the 2010 health law alone when it decided to gut the mandate penalty as part of its recent tax-cut legislation, so Obamacare’s protections for sicker Americans should remain.

Yet the judge suggested he ought to look at the Affordable Care Act as written, which seemed to tether the mandate to rules that force insurers to cover people with preexisting conditions and charge them the same as healthy people.

“It appears to me that every single justice who considered this essentially says Congress is clear ... you cannot separate [the] individual mandate from community rating, guaranteed issue,” Judge O’Connor, an appointee of George W. Bush, said, according to a Modern Healthcare reporter who tweeted after the hearing.

Judge O’Connor did not rule on the GOP states’ request Wednesday for a preliminary injunction to stop Obamacare in its tracks.

The Trump administration has sided with the GOP states but tried to pump the brakes on a decision that would freeze Obamacare right away. They said any changes shouldn’t happen until the start of the new year, when the mandate tax sinks to zero.

“There could be the potential for chaos in the insurance markets,” Justice Department attorney Brett Shumate said, according to Politico.

The pending case is the subject of intense scrutiny among lobbyists, Capitol Hill lawmakers and policy analysts.

Some legal experts say the challenge is unlikely to survive on appeal, yet it seeped into Senate confirmation hearings for Judge Brett Kavanaugh, Mr. Trump’s pick for the Supreme Court.

Sen. Sheldon Whitehouse, Rhode Island Democrat, demanded to know Wednesday if Judge Kavanaugh would uphold protections for people with preexisting conditions, though the nominee said he “can’t give assurances on specific hypotheticals.”

Liberal advocates seized on the comments, saying it portended bad things combined with the tea leaves out of the Texas courtroom.

“Just as an extreme far-right judge signals he will strike down the ACA’s protections, Trump’s Supreme Court nominee keep his views secret from the public,” Topher Spiro, a senior fellow on health policy at the Center for American Progress, tweeted.

Influential lobbying groups like the AARP, which represents older Americans, have criticized the state-driven lawsuit, while a series of patient groups this week rejected a Senate GOP bill to backfill Obamacare’s protections if the courts strike them down as insufficient, saying it would require plans to offer an insurance card yet allow them to refuse coverage for actual preexisting conditions.

A Kaiser Family Foundation poll released Wednesday said three-quarters of the public view Obamacare’s protections for sicker Americans as “very important,” while four in 10 are worried they or a family member will lose insurance outright if the courts rule in favor of the conservative states.

Democrats are pointing to those fears ahead of the mid-term elections, saying last year’s Obamacare-repeal effort and the state lawsuit should reflect poorly on the entire GOP.

“Families’ health care will never be safe while Republicans control Washington,” House Minority Leader Nancy Pelosi said Wednesday.

Two of this year’s GOP challengers for Senate seats West Virginia Attorney General Patrick Morrisey and Missouri Attorney General Josh Hawley are plaintiffs in the suit against Obamacare.

Update hourly