NEW ORLEANS, LOUISIANA — A panel of two Republicans and one Democrat on the United States Court of Appeals for the Fifth Circuit heard oral arguments on Tuesday in a case asking them to repeal the Affordable Care Act in its entirety. The Democrat did not speak, although she remains overwhelmingly likely to reject this attack on Obamacare.

The Republicans, by contrast, came to court today wearing their partisan hats. When Samuel Siegel, the first of two lawyers defending the law, was at the podium for his portion of the arguments, Judges Jennifer Elrod and Kurt Englehardt peppered him with questions, many of them delivered in a mocking tone. At one point, Englehardt even accused Siegel of making an argument that betrays the American Revolutionary War.

Meanwhile, the three lawyers opposing the law did receive some critical questions from the two Republican judges, but those questions were not especially animated and they soon trailed off. Kyle Hawkins, the lawyer who delivered the bulk of the anti-Obamacare arguments, spent much of his time speaking before a silent panel, punctuated mainly by listless questions from Elrod that seemed designed primarily to give him something to talk about.

The most ominous sign of all is that the Republicans spent a considerable amount of time discussing what would be the appropriate scope of a court order striking the Affordable Care Act — a matter that obviously is only relevant if they intend to strike the law.


An estimated 24,000 Americans will die every single year, who otherwise would have lived, if Obamacare is ultimately struck down.

There were a few hints that either Elrod or Englehardt may be too embarrassed by the weak arguments raised by the plaintiffs to ultimately grant them the relief they seek. And both Republicans at one point floated a possible middle ground that would strip protections from Americans with pre-existing conditions while still leaving some of the law intact.

But the smart money would not bet on the rule of law winning out after Tuesday’s argument. Texas v. United States appears likely to end in the triumph of partisanship over law, at least in the Fifth Circuit.

The premise of Texas is that the 2017 tax law, which zeroed out a provision of the Affordable Care Act that previously required most people without health insurance to pay higher taxes, actually repealed the entirety of Obamacare.

The argument goes something like this: that provision, known as the “individual mandate” is actually drafted as two separate provisions. The first provides that most Americans “shall” carry health insurance. The second imposes a tax on people who fail to do so. After 2017, the amount of that tax is zero dollars.


In NFIB v. Sebelius, the Supreme Court famously upheld the individual mandate as an exercise of Congress’ power to tax. But wait! Because that tax is now zero, that means it’s no longer a tax, so it must be unconstitutional. Worse, because the word “shall” still appears in the law, that means that the post-2017 version of Obamacare must now be read as a command to buy health insurance — and an unconstitutional one at that.

There are numerous problems with this argument, but the biggest one is that the Supreme Court explicitly rejected it in NFIB. As Chief Justice John Roberts wrote in that case.

Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.

Before 2017, in other words, the law gave people a choice between paying a tax or buying health insurance. After 2017, they fully comply with the law by either carrying insurance or paying zero dollars.

Nevertheless, both Elrod and Englehardt repeatedly characterized the zeroed out mandate as a “command” to purchase insurance. That’s simply not true under NFIB.

Should the court ultimately strike down the mandate, that in and of itself doesn’t mean much. The mandate now does nothing, so a decision eliminating it should also do nothing, but that’s where the plaintiffs’ arguments take a weird turn.


When a court strikes down part of a law, it often must ask whether other parts of that statute must fall as well — an inquiry known as “severability.” Severability is a speculative inquiry. It asks which hypothetical law Congress would have enacted if it had known that one provision was invalid.

But such speculation is unnecessary in Texas. Congress already answered this question. It spent much of 2017 debating how much of the Affordable Care Act to repeal. In the end, they only had the votes to repeal one provision, the individual mandate.

Thus, even if you assume that the neutered mandate is unconstitutional, we already know that Congress would have preferred for the rest of the law to stand. That’s because Congress effectively repealed the individual mandate while allowing the rest of the law to stand.

The Supreme Court, moreover, held in Murphy v. National Collegiate Athletic Association that judges should be very reluctant to strike down constitutional provisions of a law after they find that a provision of that law is unconstitutional. “In order for other . . . provisions to fall,” Murphy held, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”

And yet, both Elrod and Engelhardt appeared allergic to the idea that they are required to follow Murphy. Judge Engelhardt even suggested, at one point, that Murphy should be turned on its head, and that the burden should fall on the lawyers defending the law to prove why the whole thing shouldn’t be struck down.

When Douglas Letter, a lawyer for the U.S. House of Representatives, was at the podium, Engelhardt launched into an angry rant, demanding to know why the House couldn’t fix the problem by amending the Affordable Care Act to take this case off the table. When Letter eventually gave the obvious answer, that the Senate would have to pass the law and President Donald Trump would have to sign it, Engelhardt acted like Letter had stepped into a trap.

Why should judges become “taxidermists?” Engelhardt asked in one of the oddest moments of the argument. If part of a law is unconstitutional, why shouldn’t the political process resolve how much of the law should remain? And until it does, Engelhardt appeared to suggest, the proper remedy is just to remove the entire law.

The answer, of course, is that Engelhardt’s approach is the exact opposite of what the Supreme Court said should be done in Murphy.

In fairness, there were a few moments when Elrod and Engelhardt appeared embarrassed by the gravity of what they appear likely to do. When Letter first stepped to the podium, for example, he read to them the language from NFIB holding that the plaintiffs’ reading of the individual mandate is dead wrong, and both Republicans sat for a few moments in silence before they appeared to regain their footing and go back on the attack.

Similarly, both Republicans, at some points, appeared bothered by the idea that Obamacare provisions completely unrelated to the individual mandate might have to fall — a provision requiring restaurants to display caloric information came up a few times, for example. Elrod and Engelhardt both, at times, seemed to float the possibility of striking down the law’s protections for people with pre-existing conditions and other insurance regulations, while maybe keeping other parts intact.

But the argument overall was a disaster for Obamacare and, given the staggering weakness of the plaintiffs’ arguments, the rule of law. Texas also could amount to one of the most significant mass killings in American history.

Again, about 24,000 people will die every year. Year after year. If Obamacare is struck down. That’s tens of thousands of fathers who will never kiss their daughters again, and tens of thousands of wives who will never hold their husbands again.

If an invading army committed such an act — If it killed 24,000 innocent people, year after year — we would name that act an “atrocity.” Resolutions would be debated in the United Nations Security Council. Peacekeepers would be sent to intervene.

But in this case, one of the greatest acts of mass killing to occur on American soil since the Civil War will not be committed by an army. It may, however, be committed by Jennifer Elrod and Kurt Engelhardt.

If the law permitted such a result, then perhaps it could be justified. But there is no law supporting such an outcome. It’s just pure, cruel ideology all the way down.