The case the Trump administration is making to overthrow the Affordable Care Act, being heard by a three-judge panel on the U.S. Court of Appeals for the 5th Circuit Tuesday, has been widely panned even by conservatives. Longtime Obamacare foe Jonathon Adler says the plaintiff's arguments are "weak and unorthodox."
The plaintiffs, a bunch of Republican states backed up by the Trump administration, are arguing that when Congress decided to zero out the individual mandate penalty of the law in their tax cut bill, they invalidated the mandate. They point to the 2012 Supreme Court decision that upheld the law and the mandate as a tax that was within Congress' power to impose and say since it was set to zero, it now is invalid (even though it wasn't repealed) and because it is integral to the law, it's invalidity means the whole law is unconstitutional. Never mind that Congress did not repeal the actual individual mandate, or the law (even though they tried when Trump made it to the White House). Previous courts have relied on the concept of severability in these kinds of cases; basically the question of whether the entirety of a law can be constitutional if one part of it is invalidated. The default for courts in deciding that has been congressional intent, and clearly Congress didn't intend to throw out the entire ACA when they zeroed out the individual mandate. They didn't even throw out the mandate—it's still on the books.
That counts against Trump and the Republican states. So does the fact that the Trump administration has been undercutting its own arguments about the functioning of the law without the penalty. For instance, in its May filing with the 5th Circuit Court of Appeals, the administration argued that the "ACA's provisions were highly interdependent. […] Once those core provisions are excised, the balance of the ACA cannot continue to operate as intended."
That happened just a few months after the administration argued almost exactly the opposite in another suit challenging the administration's efforts to sabotage the law.
The ACA is extremely stable, the geniuses argued in their effort to have the suit dismissed. "Monthly premiums for individual market plans … generally decreased in 2019," they argued, pointing to how well it was still working for consumers. "Those same exchanges saw an increase in individual market insurers, compared to 2018, which means more consumer choices and healthier competition among issuers," they crowed. Meanwhile, Seema Verma, who oversees the ACA as administrator of the Centers for Medicare and Medicaid Services, touted "another year of stable enrollment" and declining premiums.
So either the whole law is crumbling because the individual mandate is gone, or it's a tremendous success under Trump, and he is in no way trying to destroy it. That could come back to bite the plaintiffs, University of Michigan law professor Nicholas Bagley tells Los Angeles Times reporter Noam Levey. While federal courts are "usually reluctant" to get into the weeds of what an administration is saying and doing, this one is playing with fire. "Courts can get pushed to the point where they say this is too much to swallow."
The three judges on the panel are a mixed bag, two of them having proven to be nightmarish to good government. It's not at all a given that precedent, congressional intent, or the history of the Trump administration arguing out of both sides of its mouth will make a difference with the majority of the panel.