“If you no longer have the tax, why isn't it unconstitutional?”

This question, posited by Fifth Circuit court judge Jennifer Elrod, served as the central issue in the opening day of oral arguments challenging the ACA.

The closely watched case pits 18 Republican-led states seeking to strike down the landmark health care law against 20 Democrat states, as well as the House of Representatives, seeking to defend it. Republicans are arguing that when the individual mandate was voided by the 2017 tax reform act, it subsequently voided the entire law.

“The Affordable Care Act has what amounts to an inseverability clause because the penalty is essential to drive people to buy insurance,” Texas Solicitor General Kyle Hawkins said.

Elrod is joined by two other judges, Kurt Engelhardt and Carolyn King. While Elrod and Engelhardt had several questions about the repeal of the mandate and what it meant for the law, they did not seem swayed by arguments that the entire law should be thrown out, as ruled by a Texas judge in December and advocated by the Trump administration and DOJ.

Democrats argued that the impact of the loss of the mandate is minimal. “The entire Affordable Care Act can cooperate without the individual mandate,” argued California Deputy Solicitor General Samuel Siegel. “The individual mandate no longer requires anyone to do anything.”

While arguments about the mandate's impact on health insurance enrollment are complicated, impact (or lack thereof) on other aspects of the law are more clear-cut. “What would you say to someone who says it's absurd that it's not severable from restaurant calorie guidelines?” Elrod asked.

Indeed, the question of what can stay and what would go should the mandate be invalidated is a complicated issue, as is whether and how such a ruling would affect only the 18 states bringing suit against the law. “A lot of this stuff has to be sorted out, and it's complicated,” said DOJ attorney August Flentje. “We haven't gone down that road yet.”

The judges also expressed some resentment at being used as a tool in a dispute between Republicans and Democrats. “There's a political solution and you're asking this court to roll up its sleeves and get involved in it.” Engelhardt said.

A ruling is expected in the coming months.

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Rough day for Obamacare oral arguments

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