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Republican states knew what they were doing when they had Texas Attorney General Ken Paxton take the lead in their latest, bogus challenge to the Affordable Care Act. The chances of finding a friendly judge for them are higher in Texas than just about anywhere, and that's apparently just what they got. The states are asking for a preliminary injunction to suspend the law while the case is fully heard, an injunction that would immediately throw millions of people's coverage into question.
U.S. District Judge Reed O'Connor "was much tougher in his questioning of the Democratic lawyers than he was of the GOP states attorneys general who filed the suit to invalidate the law." He seemed to dismiss the argument that Democratic attorneys general, who are standing in to support the law. The Trump Department of Justice did argue in court against an injunction, saying that it "could throw the health care markets into chaos." But the administration has filed a brief in support of the challenge, in particular saying that the provisions of the law extending consumer protections to people with pre-existing conditions should be struck down.
O'Connor went right at the argument of severability the law's defenders have put forward, the principle which has convinced most experts that Texas et al. don't have a case and that the challenge is "absurd" and "ludicrous." Severability is the concept that if one provision of a law is struck down, the remainder of the law still stands. They bolster that argument in looking at Congress's intent in repealing the individual mandate fine in their tax bill of last year—Congress let the rest of the law stand, and have even argued that they want the rest of the provisions protecting people's health insurance to stand. They left the insurance protections in place.
"It does seem for majority of cases," O'Connor asked the lawyers, "the Supreme Court says to look at the original legislation as enacted. […] Why would I not? Let's assume I don't buy the argument it is still a tax and believe the mandate should fall and I get to severability, why wouldn't I look at those cases?" The ACA contains language that says the individual mandate is "essential creating health insurance markets in which improved health insurance products that are guaranteed issue and do not include coverage of pre-existing conditions can be sold." O'Connor seems to be arguing that the Supreme Court is telling him to ignore severability in this case.
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In his questioning, he seemed to be swayed by the red states' argument that the 2012 decision by the Supreme Court upholding the law ruling that Congress had the authority to set taxes which in turn made the insurance mandate constitutional. The constitutionality of the mandate, they argue, is the linchpin of the constitutionality of the whole law, and now say that decision basically doesn't count anymore. Since the penalty has been repealed by Congress, they contend, the high court's decision no longer applies and the whole law is thus invalid. Which for many, many legal experts is a major leap. Apparently not for O'Connor.
Congressional Republicans and the White House are left to wring their hands over the possibility of an immediate injunction on the law, an outcome that would surely throw not just the healthcare system into total chaos, but guarantee they would lose the House and even possibly the Senate in November.
Two Republicans in particular should be paying very close attention to all of this. Sens. Lisa Murkowski (AK) and Susan Collins (ME), the two who saved Obamacare along with John McCain last year, are possibly undecided on the nomination of Brett Kavanaugh. That's the guy who just got finished telling the Senate Judiciary Committee that he can't comment on the "hypothetical" that people would lose their pre-existing condition protections. After today's hearing in Texas, that eventuality is a helluva lot less hypothetical.