Two of the three judges on the 5th U.S. Circuit Court of Appeals panel hearing a constitutional challenge to the Affordable Care Act appear ready to side with the hard-core right-wing extremist lower court judge who tossed the law. Those judges, appointed by George W. Bush and Donald Trump, have a track record of extreme political decisions, so this isn’t wholly unexpected.
The two Republicans seem more than prepared to strike what’s left of the individual mandate, but unsure as to whether to toss the rest of the law with it right now, or send it back to the lower court to finish it off. ThinkProgress’s Ian Milhiser, who was at the courthouse Tuesday, reports that the two “spent a considerable amount of time discussing what would be the appropriate scope of a court order striking the Affordable Care Act—a matter that obviously is only relevant if they intend to strike the law.”
Given the weakness of the case on actual legal grounds and the wackiness of the lower court judge’s decision, Milhiser saw “a few hints that either [one of the two Republicans] Elrod or Englehardt may be too embarrassed by the weak arguments raised by the plaintiffs to ultimately grant them the relief they seek,” but the questioning as a whole from the two (the third, a Jimmy Carter-appointed judge, did not ask questions) was hostile to the law and to the Democrats arguing for it. “When Samuel Siegel, the first of two lawyers defending the law, was at the podium for his portion of the arguments, Judges Jennifer Elrod and Kurt Englehardt peppered him with questions, many of them delivered in a mocking tone,” Milhiser reports. “At one point, Englehardt even accused Siegel of making an argument that betrays the American Revolutionary War.”
In a demonstration of just how warped the issue has become at this point, the Trump administration official arguing against the law dismissed the fact that tens of millions of people would lose insurance protections and their healthcare coverage entirely were the law to fall as just a “technical” issue. That apparently didn’t raise any eyebrows for Elrod or Englehardt.
This is almost certainly going to go to the Supreme Court, as the decision by this panel seems to be made. Tuesday’s hearing was just a chance for them to decide the mechanics of striking down the law. Trump and his allies, including the Republican-controlled Senate, have put the health care of tens of millions of people, including protections for more than 130 million with pre-existing conditions, in jeopardy. Once again, it’s going to come down to the Supreme Court.