NEW ORLEANS — Congress rendered former President Barack Obama’s signature health care law completely unconstitutional in 2017 by eliminating the tax penalty for not having insurance, the Trump administration and a coalition of Republican-led states told a federal appeals court Wednesday.

The “Obamacare” opponents hope to persuade the 5th U.S. Circuit Court of Appeals in New Orleans to uphold U.S. District Court Judge Reed O’Connor’s ruling late last year striking down the law.

The Trump administration acknowledged its change of position in the case. Early on the administration had argued that only certain key parts of the Affordable Care Act, such as protections for people with pre-existing medical conditions, should be invalidated. But the administration said it reconsidered its position in light of O’Connor’s ruling.

“The individual mandate works part and parcel with the other health-insurance reforms in the ACA,” the administration said. Without the mandate, it argued, the law could not work.

O’Connor’s ruling last December came in a case filed by Texas and a coalition of Republican-led states. He said that without a tax penalty, the law’s requirement that most Americans have insurance is unconstitutional. Democratic attorneys general and the U.S. House appealed.

If the ruling is allowed to stand, more than 20 million Americans would be at risk of losing their health insurance, re-igniting a winning political issue for Democrats heading into the 2020 elections. President Trump, who never produced a health insurance plan to replace “Obamacare,” is now promising one after the elections.

Oral arguments in the case are expected in July. Meanwhile, the effects of the lower court ruling have been on hold pending appeals.

The last word on any decision to strike down the health care law almost certainly will come from the Supreme Court, which has twice sustained the 2010 health law. Chief Justice John Roberts and four more liberal justices who voted in favor of the law remain on the court. A court victory would fulfill Trump’s goal of undoing the law, but it could be politically costly for the GOP by ending popular provisions such as protection for pre-existing conditions and coverage for young adults on their parents’ health plans.

The states took the same position as the administration. “At issue is not what health-insurance system is optimal, but ‘only whether Congress has the power under the Constitution’ to command the people as the ACA does,” the states wrote in their brief.

In their appeal, California Attorney General Xavier Becerra, 20 other state attorneys general and the House have argued that zeroing out the penalty does not make the individual mandate unconstitutional – noting that the framework for the tax remains in place.

Even if the individual mandate were unconstitutional, they argued in briefs earlier this year, the rest of the law remains legally viable.

They said that when Congress repealed the tax penalty for those remaining uninsured, it was more like a tweak than a blow designed to bring down the entire 974-page statute. The health law also rewrote federal laws on a broad range of topics, from fighting fraud to promoting public health.

After the fines were repealed, Republican lawmakers in Congress explained their votes as an attempt to correct the law’s most unpopular provision, not bring down the entire law.

Democrats also argue that if the law is to be repealed and replaced, that’s the job of Congress and the president under the Constitution, not the courts.

 

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