FORT WORTH — More than 1,000 miles from the caustic Supreme Court confirmation hearing of Brett M. Kavanaugh, a federal judge here on Wednesday listened to arguments about whether to find part or all of the Affordable Care Act unconstitutional, in a case that may end up before a newly right-leaning high court.
The case has become far more than a threat to the landmark legislation. Democrats have sought to make it both a flash point in the battle over whether to confirm Judge Kavanaugh and a crucial prong in their strategy to retake control of the House and Senate in the midterm elections.
It has already made some Republicans jumpy, especially those in tight re-election contests, because the Trump administration explicitly said in a legal filing in June that it agreed with the argument of Texas and 19 other Republican states that the law’s protections for people with pre-existing medical conditions are not constitutional. The administration is refusing to defend those guarantees. In that sense, although the case threatens one of the Democrats’ proudest achievements, it is also proving to be something of an election-year gift to their party.
They have hammered away at the issue in millions of dollars of ads, at round tables with their constituents, and at this week’s confirmation hearings, where Judge Kavanaugh declined to answer a question from Senator Sheldon Whitehouse, Democrat of Rhode Island, about whether he would uphold those guarantees.
Perhaps with the political ramifications in mind, Brett Shumate, the lawyer arguing for the Justice Department made a point of urging Judge Reed O’Connor not to issue a preliminary injunction putting the law on hold until the case is decided, as the Republican state plaintiffs have asked. He said such a move could cause “extraordinary disruption” in the Affordable Care Act’s open enrollment period. That begins Nov. 1, just before Election Day.
“We certainly don’t want people to lose their health insurance going into next year,” Mr. Shumate said.
With polls finding widespread bipartisan support for the law’s pre-existing condition protections, a group of 10 Republican senators preemptively introduced legislation last month to preserve them should the law be struck down. Their proposal would prohibit insurance companies from denying coverage or charging more for it based on someone’s health status. But the catch — which Democrats have shouted from the rooftops — is that insurers could still refuse to cover certain illnesses. They could also again charge more based on gender or line of work, as was legal before the Affordable Care Act, or raise rates for older people.
The central issue in the case is whether the law’s individual mandate, which requires most Americans to have health coverage or pay a penalty, became unconstitutional after the Republican-controlled Congress zeroed out the penalty as part of the tax overhaul that President Trump signed into law in December.
The Supreme Court had upheld the mandate in 2012 as an exercise of Congress’s taxing power, leaving most of the law intact. But the plaintiffs say the mandate, now that it carries no penalty, can no longer be justified as a tax and should be struck down. And if the mandate is gone, they argued in their suit filed in February, the rest of the law must also fall, including the popular requirement that insurers must cover people with pre-existing medical conditions.
Mr. Shumate, the Justice Department lawyer, told the courtroom, “To be clear, the current administration supports protections for people with pre-existing health conditions.” Yet, he then asserted that they could not remain in the health law without the individual mandate.
Legal scholars on both sides of the partisan divide have said that the plaintiffs’ argument is weak, but even so, the case could still take months or years to make its way through the courts.
In Wednesday’s hearing, Darren McCarty, a lawyer with the Texas attorney general’s office, argued that in getting rid of the tax penalty, Congress “severed that very thin thread that held together the Affordable Care Act.” He urged Judge O’Connor, a George W. Bush appointee on the federal court for the Northern District of Texas, to issue a preliminary injunction.
In June, the Trump Justice Department told the court that while it disagreed that the entire law should be struck down or that a preliminary injunction was necessary, it would no longer defend the individual mandate or several other central provisions, including the one for pre-existing conditions.
Once the defendant in the case, the United States government, effectively sided with the plaintiffs, a coalition of 16 states and the District of Columbia, led by Xavier Becerra, the attorney general of California, intervened as defendants to fight for the law.
Judge O’Connor for the most part generally appeared more skeptical toward California than the plaintiffs on Wednesday. In particular, he questioned California’s argument that the law no longer requires people to carry insurance just because the penalty had been eliminated.
“Why wouldn’t the law still require people to buy coverage moving forward?” he asked Nimrod Elias, a lawyer for the California attorney general’s office.
Mr. Elias and his colleagues also tried another argument: Since many people pay their taxes late, penalty revenues would continue trickling into the federal treasury for at least the next few years, validating the mandate’s tax status. Again, Judge O’Connor appeared not to buy it.
But the bigger question in the courtroom was whether the various provisions of the law would be unconstitutional — unable to be severed from one another — if the mandate were found to be unconstitutional. Mr. Elias argued forcefully against that logic, pointing out that Congress had preserved the rest of the statute when it zeroed out the penalty last year.
The “correct remedy,” Mr. Elias said, would be to simply eliminate the 2017 amendment that eliminated the penalty, not to get rid of the overall law.
But Judge O’Connor seemed more interested in the Texas position that he should look to the intent of the 2010 Congress that passed the health law, not the 2017 Congress that ended the penalty, in deciding whether to preserve the rest of the law if he tossed out the mandate.
“Why would I not” look to the intent of the Congress that enacted the health law, he asked Mr. Elias.
Much of the more than three hours of arguments centered on language in the Affordable Care Act that describes the individual mandate as “essential to creating effective health insurance markets” — language that the plaintiffs said made clear that the rest of the law, or at least the pre-existing condition protections, could not function without it.
“What better could you have than these express intents of the Congress?” Judge O’Connor asked.
Mr. Elias replied, “Whatever Congress may have believed in 2010, Congress in 2017 made a categorically different judgment,” deciding to remove the penalty without touching the rest of the health law. He also read quotes from Senators Orrin Hatch, Republican of Utah, and Tim Scott, Republican of South Carolina, who publicly emphasized when the tax bill passed last year that no other part of the health law would be eliminated.
“They certainly did not believe in any way, shape or form that they were taking away subsidies and pre-existing condition protections,” Mr. Elias said.
Judge O’Connor went on to ask whether Congress might have intended to force the courts to invalidate the entire health law by targeting the penalty, knowing it was the reason the Supreme Court held up the law as constitutional in 2012.
The judge, who said he would “get something out just as soon as I can,” also grilled Mr. Shumate about the Justice Department’s position that only the law’s provisions for the individual mandate and pre-existing conditions should be invalidated, instead of the entire law, as Texas wants.
He had the fewest questions for Mr. McCarty, the lawyer for Texas, although he did ask why it disagreed with the Trump administration that a preliminary injunction would be too disruptive.
“Our position,” Mr. McCarty said, “is it doesn’t throw the American health care system into chaos.”