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The Fifth Circuit Obamacare hearing

Remember, the Fifth Circuit is where hope goes to die. Adjust your expectations accordingly.

It’s constitutional – deal with it

On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, a nominee of Donald Trump, and in the center sat Judge Jennifer Walker Elrod, the George W. Bush appointee expected to represent the critical swing vote on a three-judge panel now charged with deciding the constitutionality of the Affordable Care Act.

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the U.S. 5th Circuit Court of Appeals to strike down the sweeping health law known as “Obamacare,” a legal means to a political end that has eluded conservatives for the better part of a decade.

Texas won a major victory in its bid to end the law in December, when a federal district judge in North Texas sided with the state, declaring that the law is unconstitutional in its entirety after Congress in 2017 gutted one of its important provisions, a tax penalty for individuals who chose to remain uninsured. The U.S. Department of Justice, in a highly unusual move, has declined to defend the law.

A California-led coalition of blue states that has stepped in to oppose Texas in the lawsuit quibbles with that question of “severability,” arguing that even if one slice of the law must fall as unconstitutional, its other hundreds of provisions — including a host of popular patient protections — should stand. The question of how much of the law may rightly be salvaged was a focal point of court discussions on Tuesday.

Texas’ odds of total vindication remain in question after nearly two hours of questions before the three judges.

Most of the unusually-large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing — whether they have the right to participate in the lawsuit at all. And she seemed highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration.

Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.

The Senate, Engelhardt remarked, “is sort of the 800 lb. gorilla that’s not in the room.”

King, meanwhile, did not speak at all.

See here and here for the background. The legal basis of this lawsuit is so ridiculous that anything short of tossing it and its lawyers out of court is insufficient, but given where we are I could find a way to live with the idea of sending it back to the idiot district court judge for reconsideration. I fear we’ll get some kind of split-the-baby decision that strikes down parts of the law but leaves some crippled skeleton of it intact, which dumbass pundits will then call a “moderate compromise”, in the same way that the midpoint between “I murder you and burn down your house” and “I leave you alone” is a moderate compromise. Not much to do at this point but wait and work your ass off voting these morons out in 2020. NBC News, CNN, Daily Kos, Mother Jones, and Think Progress have more.

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5 Comments

  1. Jason Hochman says:

    It would be nice to get the repeal and replace of this give away to insurance companies, and to the people who run the non profit PCORI which needs to go away. I am irked by non profits that act as though they are a federal agency.

  2. Manny says:

    I would be happy if the government would quit subsidizing private insurance.

  3. blank says:

    I am irked by non profits that act as though they are a federal agency.

    While I don’t have anything against PCORI, I have seen more of this structure of federal funding and think this will be the future of a lot of it. The (old) usual model was for a federal agency to solicit proposals, bring in a panel to review the proposals, and then the panel would advise the agency on the best ones. Now, the more recent and increasingly common model is the federal government cuts a very large check to a non-profit or a research center, who then solicits proposals, forms the panels, and determines who gets what. 10-15 years ago, I would submit about 20% of my submitted proposals to non-profits or research centers. Now, it seems like I submit 40%. In the interest of full disclosure, I have submitted to PCORI, done well, but ultimately been declined. I have a colleague who has proposal under review now. I remain agnostic as to which funding model is more efficient. I personally though have had more success with the federal agencies than the non-profits, though many of my colleagues have had different results.

  4. Jason Hochman says:

    @blank, it was very interesting to read about your experiences and your thoughts about funding models. In general, I don’t like non profits that are in reality a federally funded entities, but, since they are a private non-profit, they are not subject to the open records laws and other accountability measures for federal agencies. To be sure, outcomes research and closing the efficacy/effectiveness gap is a much needed avenue of research.