Obamacare in Jeopardy as Appeals Court Hears Case Backed by Trump – The New York Times

If the appeals court ultimately decides that neither the House nor the intervening Democratic states have standing and that the case has become moot, it could either let Judge O’Connor’s ruling stand or vacate it. In any event, the losing party will almost certainly appeal to the Supreme Court.

“All of this is going to be playing out against the backdrop of the 2020 presidential election,” said Nicholas Bagley, a law professor at the University of Michigan. He was among a bipartisan group of professors who argued in an amicus brief last year that the rest of the law should survive even if its mandate to buy insurance was found unconstitutional, and who have criticized the plaintiffs’ case as weak.

Democrats are already running ads against Mr. Trump and other Republicans over the case, including five state attorneys general who signed on as plaintiffs and will be up for re-election next fall. Protect Our Care, an advocacy group that supports the law, will start running digital ads this week against Republican senators considered vulnerable next year: Thom Tillis of North Carolina, Joni Ernst of Iowa, Cory Gardner of Colorado and Martha McSally of Arizona.

“President Trump’s Texas lawsuit will overturn America’s health care laws,” said Leslie Dach, the chairman of Protect Our Care, “and every Republican lawmaker who refused to condemn it is complicit in the destruction of their constituents’ health care.”

All of the parties, including the Republican states and Mr. Trump’s Justice Department, have taken the position that the appeals court has a reason to hear the case because a “live controversy” remains between the Republican state plaintiffs and the federal government, which is continuing to enforce the Affordable Care Act.

In supplemental briefs filed last week, all pointed to United States v. Windsor, in which the Obama administration changed its position and stopped defending the constitutionality of the Defense of Marriage Act — which barred federal recognition of same-sex marriages — but did not object to the case continuing to move through the courts.

The appeals court could take months to decide, but the Trump administration has said it will continue to enforce the many provisions of the Affordable Care Act until a final ruling is issued.


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