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A Federal Appeals Court Appears To Be Ready To Nuke Obamacare...All of It

AP Photo/Nam Y. Huh

It’s a double-edged sword. Yes, socialized medicine is bad. Yes, Obamacare lurches us a step closer towards that progressive policy achievement. But the GOP has failed to sell their plan on health care to voters in a way that would prevent them from being blown up at the ballot box. It’s never easy campaigning on a platform that is viewed as taking away people’s stuff. The last chance the GOP had to have a clean repeal of Obamacare without political fallout was in 2012. We needed to win that election. Mitt Romney didn’t cut it. So, as the Fifth Circuit Court of Appeals hears oral arguments about the constitutionality of Obamacare, there are rumblings that the law could be struck down—all of it. Oh, yes, another liberal meltdown could be on the horizon. That seems to be happening a lot lately. At the same time, the fallout from the decision could send the GOP scrambling. Mitch McConnell is already saying if the law is struck down, the Senate would restore protections for pre-existing conditions  (via The Hill):


A federal appeals court on Tuesday hinted that it would strike down ObamaCare’s individual mandate as unconstitutional, but the three-judge panel was not as clear about whether they would overturn the entire law.

Two Republican-appointed judges on the 5th Circuit Court of Appeals grilled attorneys representing Democratic attorneys general about whether Congress intended to invalidate the entire law when lawmakers eliminated the penalty for the individual mandate.

The judges questioned whether ObamaCare would be able to stand on its own if the mandate were declared unconstitutional. The outcome of the lawsuit puts at risk health care for 20 million Americans who are covered by ObamaCare.

Legal experts on both sides of the aisle said the challengers’ legal arguments are weak and the lawsuit is unlikely to ultimately succeed, but the lines of questioning from the judges puts that analysis in doubt.

The issue is whether the mandate can be separated from the rest of the law, which extends far beyond just health insurance.


Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that he supports protecting people with pre-existing conditions.

“There’s nobody in the Senate not in favor of covering pre-existing conditions. Nobody,” McConnell said. 

If the law was overturned, McConnell said the Senate would act quickly on a bipartisan basis to restore the law’s protections for pre-existing conditions.


It could also place Sen. Susan Collins (R-ME) in a bind since she voted to get rid of the individual mandate in 2017, which is the basis for the legal challenge. This will definitely come up during her re-election, in which she could find herself fighting for her political life. She did clinch 68 percent of the vote in 2014, but the Kavanaugh fight, this health care issue, and Maine’s very, very independent electorate could shake things up. We cannot afford to lose her. She may not be the most conservative of Republicans, but obviously, she’s better than any Democrat. 

And if this appeals court guts the law, there will certainly be a legal challenge somewhere. It will probably be brought before the Supreme Court again, where the five justices that saved it in 2011 remain on the bench. I’ll let the legal writers, lawyers, and commentators duke it out. For now, in the immediate, while symbolically this could be a win, the GOP has failed to plan for the fallout for something like this and properly execute an agenda of their own that doesn’t come off as trash with voters. In the meantime, some progressives are likening this potential decision to strike it down as “one of the greatest acts of mass killing to occur on American soil since the Civil War.” Maybe the overreaction could give us some cover, but the fact remains that a lot can go wrong and at the worst possible time when the economy is booming and Trump’s approval is starting to hit record highs in liberal polls. 


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