Tags: Barack Obama | Health Topics | Healthcare Reform | obamacare | democrats | robert henneke

Overturning Obamacare in Court Looks Promising, Says Counsel in Case

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Friday, 29 March 2019 08:07 AM Current | Bio | Archive

As much as President Donald Trump was excoriated by House Democrats last week over his call for “abolishing” Obamacare, he might get his wish from a venue outside Congress: the federal court system, in which a U.S. District judge in December declared the Affordable Care Act unconstitutional.

In fact, Robert Henneke, general counsel for the Texas Public Policy Foundation and a key litigator in the case that eventually struck down the ACA, told Newsmax he feels the “abolishing” could easily occur in the higher courts in  2020.

With the Department of Justice announcing last week it was siding with U.S. District Judge Reed O’Connor’s ruling, the case is now beginning to work its way to the 5th Circuit Court of Appeals.

Henneke pointed out that “typically in major cases, such as those involving Voter ID or sanctuary cities, they started out with three-judge panels and you can petition for En Banc [the full Circuit deciding the case] if you want.”   

“I think this gets through the 5th Circuit in 2019,” Henneke said flatly, “I would expect notices of appeal due by Martin Luther King Day [in January]. Three opening briefs will be due in February.  The case could be fully briefed by early summer, with September arguments and a mid-to-late October opinion.  That is moving pretty quickly for an appellate court, but the case is of historical and national significance.”

He predicted that if this “were to be the time frame, and assuming there is no request for en banc review, I could see this being on the Supreme Court calendar for review in 2020.”  

In his December ruling, U.S. District Judge O’Connor said that since the ACA included a requirement for Americans without health insurance to pay a penalty and this measure was no longer on the books, the entire law is unconstitutional.

This requirement was the pivotal factor in the Supreme Court’s 5-to-4 ruling in the 2012 “Sebelius” case upholding Obamacare.  After agreeing with virtually all arguments against Obamacare, Chief Justice John Roberts nonetheless upheld its constitutionality on the grounds that its “Shared Responsibility Payment” was a “tax” because it required tax dollars from Americans who wouldn’t purchase health insurance.

With the 2017 Tax and Jobs Act reducing the Shared Responsibility Act to zero, the ACA lost the lone constitutional leg on which it stood.

“As a result of the Shared Responsibility being zeroed out, what was left was the individual mandate [requiring Americans to purchase health insurance] and because it was hard-wired into the Affordable Care Act, the court found it couldn’t be severed and thus declared the entire ACA invalid,” Henneke told us.

If this decision stands, he added, “Yes, the entire ACA will be struck down.”

John Gizzi is chief political columnist and White House correspondent for Newsmax. For more of his reports, Go Here Now.
 

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As much as President Donald Trump was excoriated by House Democrats last week over his call for “abolishing” Obamacare, he might get his wish from a venue outside Congress: the federal court system, in which a U.S. District judge in December declared the Affordable Care Act . . .
obamacare, democrats, robert henneke
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2019-07-29
Friday, 29 March 2019 08:07 AM
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