'Tough Day in Court,' but Experts Say the 5th Circuit Might Salvage Parts of Obamacare
“The most likely outcome here is the court affirms the lower court with respect to standing and the merits and they issue a remand to decide what specific portions can be salvaged from the law,” attorney Josh Blackman said about the dispute over the Affordable Care Act.
July 10, 2019 at 02:38 PM
5 minute read
Attorneys who observed oral arguments in the legal challenge to the Affordable Care Act all said they expect the U.S. Court of Appeals for the Fifth Circuit to remand the case to the trial court to redetermine if parts of the law might be saved.
“It's really hard to read the tea leaves of an argument of that length and complexity,” said Wright Close & Barger partner Raffi Melkonian of Houston, who attended the oral argument.
The oral argument Tuesday lasted an hour and 45 minutes as five attorneys representing all sides of the dispute over so-called Obamacare answered questions from Judges Carolyn Dineen King, Jennifer Walker Elrod and Kurt D. Engelhardt. King, the only judge appointed under a Democratic president, didn't ask any questions during the argument.
Nicholas Bagley, a University of Michigan School of Law professor who's a recognized expert on the Affordable Care Act, wrote in a blog post that the questioning was “brutal.”
“It's safe to say that the ACA's defenders had a tough day in court,” he wrote, noting that Elrod and Engelhardt seemed receptive to holding the act either wholly or partly unconstitutional.
In the dispute, two people and a group of Republican states, led by Texas, won a ruling in December 2018 that the act's mandate requiring people to purchase health insurance was unconstitutional, ever since Congress in 2017 zeroed out the tax penalty that uninsured people had to pay. U.S. District Judge Reed O'Connor also ruled that he couldn't sever the unconstitutional individual mandate from the rest of the law, which meant the entire Affordable Care Act was also unconstitutional. The court stayed the ruling pending appeal.
A group of 16 Democratic states and Washington, D.C., led by California Attorney General Xavier Becerra, had intervened early in the case to defend the law, and they appealed O'Connor's ruling. In May, the Department of Justice announced it agreed the whole law was unconstitutional, and wouldn't defend it on appeal. This prompted the U.S. House of Representatives to intervene to defend the law.
South Texas College of Law Houston professor Josh Blackman, who's written two books about the Affordable Care Act, said the judges' questions gave him the impression that the court was sympathetic to the plaintiffs' side.
“The most likely outcome here is the court affirms the lower court with respect to standing and the merits and they issue a remand to decide what specific portions can be salvaged from the law,” he said.
Melkonian, who represented three conservative law professors in filing an amicus brief in the case, said he was struck by a multitude of questions by Elrod about the proper remedy if the Fifth Circuit sent the case back to the trial court.
“There were many minutes of questions about: If we did remand, what would that look like? What would a remand be for? What would we do about severability,” explained Melkonian.
Bagley also noted the lengthy discussion about severability, but explained that judges seemed divided. Engelhardt expressed skepticism that the individual mandate could be severed, since case law has found the mandate was the base of a comprehensive scheme to regulate insurance markets. Elrod at times also seemed skeptical about taking a “blue pencil” to the legislation, wrote Bagley, but other times, she was critical of the idea of tossing the entire law.
At one point, Elrod asked the California coalition's attorney whether his clients would still face an injury if all the Fifth Circuit did was declare the individual mandate as unconstitutional. Several times Elrod asked attorneys how it's possible that provisions in the law that require restaurants to post calorie counts on their menus could also be unconstitutional.
“Toward the end, she raised the possibility of remanding the case to Judge O'Connor, perhaps with instructions for him to take another crack at severability,” Bagley wrote. “A remand for greater clarity on the scope of the judgment—to whom does it apply? can't some parts of the ACA be severed?—may be in the cards.”
Blackman said if the Fifth Circuit did remand the case to the trial court to save parts of the law, it could be a lengthy procedure. First, the court would have to redetermine if the individual mandate can be severed from the rest of the law, and next, comb through the entire act to determine which provisions to salvage.
Related stories:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFrom ‘Deep Sadness’ to Little Concern, Gaetz’s Nomination Draws Sharp Reaction From Lawyers
7 minute read'Rapidly Closing Window': Progressive Groups Urge Senate Votes on Biden's Judicial Nominees
5 minute readTrending Stories
- 1Cars Reach Record Fuel Economy but Largely Fail to Meet Biden's EPA Standard, Agency Says
- 2How Cybercriminals Exploit Law Firms’ Holiday Vulnerabilities
- 3DOJ Asks 5th Circuit to Publish Opinion Upholding Gun Ban for Felon
- 4GEO Group Sued Over 2 Wrongful Deaths
- 5Revenue Up at Homegrown Texas Firms Through Q3, Though Demand Slipped Slightly
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250