Federal Judge Hears GOP Effort to Kill Obamacare

FORT WORTH, Texas (CN) – As protesters chanted outside the courthouse, a federal judge in Texas heard arguments Wednesday over whether to block Obamacare as Texas’ lawsuit to invalidate the health care law on a technicality moves forward.

Supporters of the Affordable Care Act protest during a rally at Burnett Park in Fort Worth, Texas, Wednesday, Sept. 5, 2018. (Max Faulkner/Star-Telegram via AP)

U.S. District Judge Reed O’Connor, a George W. Bush appointee, did not immediately rule on Texas’ motion for a preliminary injunction against the Affordable Care Act at the end of the four-hour hearing, telling the packed courtroom he will render his decision “as soon as I can.”

Texas and 19 other Republican-led states sued the federal government in February, citing a U.S. Supreme Court ruling that the ACA’s individual mandate would be an unconstitutional exercise of federal power without its tax penalty. The high court reached that conclusion when it upheld Obamacare subsidies in 2015. Dismayed Republicans then gutted the individual mandate tax penalty in last year’s Tax Cuts and Jobs Act, opening the door for the lawsuit.

Texas Attorney General Ken Paxton, who was not present in court, said the Supreme Court concluded the ACA “was only tethered to the Constitution by a very thin thread” and the tax penalty raised “some revenue.”

“Congress severed that thin thread with the tax act of 2017, and all of Obamacare must fail,” he said in a written statement after the hearing. “On some of the most important issues, the Department of Justice under both President Trump and President Obama agreed with our position. Texans and other Americans should be free again to make their own healthcare choices, including which doctor they want to see.”

The plaintiffs told Judge O’Connor they have a “clear likelihood of success on the mandate’s unconstitutionality” due to Supreme Court’s conclusion that “Congress has no authority to require the purchase” of health insurance. They said that even states that did not opt-in on the expansion of Medicaid would have to pay much more in Medicaid reimbursements because people will enroll in the program just to satisfy the individual mandate without regard to whether there is a tax penalty.

“These are financial injuries, but they are irreparable because once the money is spent, it is forever lost, as there is no known avenue for recovery through the courts,” the plaintiffs’ motion for preliminary injunction stated.

California and 15 other Democrat-led states moved to intervene in the lawsuit two months after it was filed, arguing Congress merely reduced the tax penalty from 2.5 percent to zero and did not repeal any statutory provisions in the law.

The Trump administration further complicated the case when it announced in May that it would not defend Obamacare in the lawsuit, with U.S. Attorney General Jeff Sessions admitting his inaction was a rare exception to the “longstanding tradition of defending the constitutionality” of laws if reasonable arguments can be made in their defense. Sessions has since asked for summary judgment in favor of Texas and declaratory judgment that the mandate will be invalid as of Jan. 1, 2019, leaving the defense of Obamacare to the Democrat-led states.

The American Medical Association and several other health care and physicians groups filed a brief in support of the Democrat-led states in June, arguing Texas lacks standing and that killing the law would “wreak havoc” on the American health care system.

Outside the Eldon B. Mahon U.S. Courthouse in Fort Worth, several dozen protesters gathered at Burnett Park and held signs denouncing the lawsuit as politically motivated. One protester was dressed up as the grim reaper, holding a sign saying “I am the GOP health plan.”

Paxton’s opponent in November’s general election, Democrat Justin Nelson, told reporters “this lawsuit is so wrong” and is a waste of state taxpayer dollars that aims to take health care away from millions.

“We can have a real debate about whether to improve health insurance coverage or not,” he said. “What we should not be doing is trying to use courts as political tools to get something that Congress did not pass.”

Plaintiffs’ attorney Robert Henneke disagreed, saying promises made by the Obama administration of being able to choose your own doctor or keeping your prior health insurance were lies. Henneke is general counsel and director of the Center for the American Future.

“The system is crumbling,” Henneke said outside of the courthouse. “As it continues to crumble, it continues to provide worse and worse health care for the Americans that have no other choice and [are] forced to buy these broken insurance plans on the individual market.”

As Henneke spoke, he was interrupted by protester Michael Lummus, who loudly yelled, “Why are you lying, boy?”

Lummus, 49, of Alvarado, told reporters from his wheelchair that “Obamacare saved my life” from a bone disease.

“I do not know how you can sleep at night,” Lummus told Henneke. “Those are bald-faced lies … people like you want to kill people like me because we cannot work. I am trying to find a job and they are not going to cover me if you sit there and take away pre-existing conditions. Where am I supposed to go?”

Henneke responded that he could go to a state health provider. Lummus immediately rejected the suggestion, saying “they do not provide for us in Texas.”

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