Weighing the decision of a federal district judge to declare the entire Obamacare health system invalid, a three judge panel of the Fifth Circuit Court of Appeals on Tuesday searched for a legal path forward on the case, with a pair of more conservative judges expressing deep reservations about the requirement to buy health insurance, and whether the end of a tax penalty for failing to comply should kill the rest of the law.
"If you no longer have the tax, why isn't it unconstitutional?" asked Judge Jennifer Walker Elrod about the future of the Obama health law.
But while Elrod and Judge Kurt Engelhardt made clear their feelings about the law, they certainly did not offer up a road map on Tuesday for how to deal with the case. A third judge - a Democratic appointee - said nothing during the court session.
During over 90 minutes of arguments, the two Republican judges openly struggled with whether to send the case back to a lower court for more work, puzzled by a new brief from the Trump Administration, which suggested that the Obama health law basically be repealed only in the 18 GOP-led states involved in this legal challenge.
"I think we would have to evaluate whether we've been the victim of a bait and switch," said Kyle Hawkins, the Solicitor General in the state of Texas, about that idea.
Judge Engelhardt vented his own frustration at the Congress, saying lawmakers should be working with the President to fix problems with the Affordable Care Act, without the need for judicial intervention.
"There's a political solution here," said Engelhardt, as the judge snapped his fingers to indicate he thought there could be speedy legislative action on health care reforms in Congress, which could be sent to the President for his signature.
That idea was met with skepticism by U.S. House Counsel Douglas Letter.
"And obviously the President would sign that, right?" said Letter, as with a heavy dose of sarcasm in his voice, he answered his own question about getting a deal with Mr. Trump.
"No, obviously not," Letter added, amid the sound of laughter and chuckles in the court.
The exchange reminded me of one at the U.S. Supreme Court in 2015, during arguments about getting rid of the subsidies for the Obama health law, when Justice Antonin Scalia said he expected that if the court struck down that part of the law, then lawmakers would swiftly move to fix the situation.
"This Congress?" deadpanned the Solicitor General, Donald Verilli, as the audience roared with laughter, signifying the disbelief that lawmakers could reach a bipartisan deal on anything related to health care.
As with those arguments, both sides now must wait for a ruling from the three judge panel - to see whether the case will go back to lower courts, or up the chain to the U.S. Supreme Court.
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