A federal appeals court sympathized Tuesday with Republicans who say Obamacare's "individual mandate" to hold insurance is no longer constitutional, though left unclear how much of the program should fall with it.
Two Republican appointees on the three-judge panel, Kurt Engelhardt and Jennifer Walker Elrod, asked tough questions of Democrats defending the health law in a case that hinges on Congress' 2017 decision to zero out the "individual mandate" tax for shirking insurance.
The Democrats say Congress intended to leave the rest of the program intact when they made the change in a GOP tax bill, especially since coverage for millions is at stake.
But the judges said it was difficult to prove that claim, based on the tax legislation itself and Chief Justice John G. Roberts' decision to highlight the tax as a linchpin of the law in 2012.
"If you no longer have a tax, why isn't it unconstitutional?" Judge Elrod, of the U.S. Court of Appeals for the Fifth Circuit, said Tuesday in New Orleans.
The panel is considering an appeal of a mid-December ruling in Texas that sided with state Republicans looking to dismantle Obamacare.
The judge in Forth Worth said mandate is unconstitutional and cannot be severed from the rest of the law — including its protections for people with preexisting conditions, subsidies for private insurance and expansion of Medicaid.
President Trump and a coalition of state Republicans, led by Texas, are pushing the Fifth Circuit to uphold that decision, setting the table for an explosive Supreme Court battle on the cusp of the 2020 election.
"The individual mandate is the centerpiece of Obamacare. When the law was stripped of its revenue-raising penalty, the mandate and the entire law are now unconstitutional," Texas Attorney General Ken Paxton said Tuesday.
Judge Engelhardt, a Trump appointee, question why the the GOP-led Senate wasn't before the court, even as House Democrats dispatched a lawyer to argue in defense of the law.
"There's a political solution here," he said. "Why does Congress want the Article III Judiciary to become the taxidermist for every legislative, big-game accomplishment that Congress achieves?"
Judge Elrod noted it was impossible to know whether some Republicans saw changes to the mandate, enshrined in the GOP tax-cut bill, as a backdoor way to attack Obamacare.
A third judge — Carolyn Dineen King, appointed by President Jimmy Carter —did not ask any questions.
Josh Blackman, a professor at South Texas College of Law who attended arguments, said he expects the court to remand the case back to the lower court to figure out which parts of Obamacare harm the plaintiffs and should be blocked.
Capitol Hill Democrats have vowed to defend the law to the Supreme Court. They are highlighting the real-life stakes in the case, saying up to 20 million Americans could lose coverage and millions more would be locked out of the marketplace if the state Republicans get their way.
"If the right wing wins the lawsuit, families from one end of America to the other will lose," Senate Minority Leader Charles E. Schumer said from the Capitol steps, where Democrats held photos of Americans who've gained coverage or marketplace protections from Obamacare.
Mr. Trump and his GOP allies insist they can develop a heath plan that covers sicker Americans outside of Obamacare, despite failing to do so in 2017.
Senate Majority Leader Mitch McConnell said Tuesday if the courts strike down core protections, then lawmakers will work "quickly, on a bipartisan basis, to restore it."
Democrats say there's no guarantee Republicans will adequately restore protections, so they should stew in the political consequences.
"They will reap the nasty, nasty crop that they sowed," he said.