The three-judge panel of the 5th Circuit Court of Appeals – two of these judges were appointed by Republicans – made the announcement after probing attorneys representing Democratic attorneys general about whether or not Congress had intended to overturn Obamacare when they eliminated the penalty for the individual mandate.
Without any teeth to this mandate, it's unlikely that Obamacare would be able to stand on its own, a fact that stands at the crux of the ongoing lawsuit over whether to keep the law on life support, or simply scrap it.
With roughly 20 million Americans currently covered by Obamacare, its abolishment would certainly have widespread impact. At the same time, forcing those who aren't covered by Obamacare, or any other health insurance plan, to pay a "tax" in order to keep it in operation is a violation of the Constitution.
"If you no longer have the tax, why isn't [the mandate] unconstitutional?" asked Jennifer Elrod, a judge appointed by former President George W. Bush, making an excellent point about the duplicity of this Obamacare tug-of-war.
And if the elimination of the individual mandate means that Obamacare dies, then so be it – at least that's the perspective that the panel seems to be taking in trying to alleviate the burden on Americans who are being unconstitutionally forced to subsidize health coverage for others through this "fine."
The attorneys representing the pro-Obamacare Democrats claim that Congress never had any intention of making the so-called "Affordable Care Act" collapse by eliminating the individual mandate as part of the 2017 Republican tax law.
"We know that under severability you are directed to save everything ... unless it's evident that Congress ... would have preferred no statute," maintains Douglas Letter, a representative of the House of Representatives who says that a Texas District Court ruling that the entirety of Obamacare was unconstitutional, and thus null and void, had made a grave mistake.
"The Supreme Court said unequivocally, either you shall maintain health insurance or incur a tax," Letter further claims. "We know definitively 'shall' does not mean 'must.'"
Republicans say repealing Obamacare was the plan all along
But Republicans aren't about to play these types of word games. According to Judge Kurt Engelhardt, an appointee of President Trump, the hands of Congress were tied at the time due to the budget reconciliation process.
"There is a political solution here," he's quoted as saying.
According to Judge Elrod, Congress may have believed at that time that the best course of action to eventually scrap Obamacare was to repeal the mandate penalty as a first step, which is what the nearly two dozen Republican state attorneys general that filed a lawsuit against Obamacare are contending.
Back in December, U.S. District Court Judge Reed O'Connor also sided with this notion when he declared the entirety of Obamacare to be invalid.
"Today's arguments seem to have gone very, very well," stated Robert Henneke, who represents a group of private business owners aligned with the plaintiffs in this lawsuit, to The Hill.
"The trial court ruled in our favor, and it did not seem that the Fifth Circuit panel really had much disagreement with that."
If Obamacare is eventually overturned, which some believe could happen within the next few months, Senate Majority Leader Mitch McConnell has promised that Congress will act in a bipartisan manner to make sure that whatever takes its place will cover folks with preexisting conditions.
For more related news, be sure to check out HealthCoverage.news.
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