U.S. appeals court signals sympathy to bid to strike down Obamacare

Becerra speaks at the podium during a news conference in Sacramento Calif

Two of the three judges on the appellate panelin New Orleans - Jennifer Elrod, a George W. Bush appointee, and Kurt Engelhardt, a President Donald Trump appointee - gave the appearance that they might side with a lower court judge who ruled past year that the whole law should be struck down.

It was unclear when the court would issue a ruling or if it will actually make it to the Supreme Court, but the ultimate outcome will affect protections for people with pre-existing conditions, Medicaid expansions covering roughly 12 million people, and subsidies that help about 10 million others afford health insurance.

The case could end up in the Supreme Court, likely in the midst of the 2020 Presidential Election.

Late a year ago, a federal district judge in Texas agreed.

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.

A group of Democratic attorneys general, led by California's Xavier Becerra, is arguing that the rest of the ACA remains valid, despite the Republican tax cut legislation.

On Tuesday, attorneys for California and the House of Representatives, which also has joined the suit to defend the law, urged the appellate court to preserve the law, in part because there is no evidence that Congress meant to repeal the whole law when it eliminated the mandate penalty in 2017.

The administration's stance left the task of defending Obamacare to a coalition of Democratic attorneys general and the House of Representatives, which joined in earlier this year after Democrats took control of it. John Yang talks to Axios' Sam Baker about the legal test and how the law's provisions extend beyond individual health insurance. The U.S. Department of Justice is also arguing that the ACA should be overturned.

A federal appeals court sympathized Tuesday with Republicans who say Obamacare's "individual mandate" to hold insurance is no longer constitutional, though signaled they're reluctant to decide which parts of the program should fall with it.

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A three-member panel consisting of judges appointed by Presidents Trump, George W. Bush and Carter will hear the case Tuesday.

President Donald Trump campaigned in 2016 on the promise to repeal and replace the ACA.

"Remember that the kinds of provisions here that would be struck down if there's no severability are, for example, the provision about when you can be denied or charged more insurance for preexisting conditions", Letter said. Engelhardt also suggested Congress, not the courts, should choose which parts of the law should be salvaged.

Notably, the Trump administration is not defending the law.

Asked about the court case, Senate Majority Leader Mitch McConnell promised lawmakers would uphold protections for people with pre-existing medical conditions if the health law is struck down. This spring, the administration changed its position mid-appeal, with the Justice Department telling the 5th Circuit it now agrees with the district court that the entire law is invalid.

Letter countered that the House can not "fix" the problem on its own, saying the Senate and Trump must also sign on - which they "obviously" would not - eliciting snickers in the courtroom.

"If they are successful in striking down the Affordable Care Act, Republicans will own all of the consequences", Senate Democratic Leader Chuck Schumer of NY said on a call Monday with reporters.

Democratic leaders in both the Senate and the House on Tuesday warned their Republican colleagues of the costs - both political and financial - the loss of the popular ObamaCare would incur.

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