Judge from Baytown on panel weighing case


As a three-judge panel from the U.S. 5th Circuit Court of Appeals in New Orleans considers the fate of the Affordable Care Act — ‘Obamacare’ — the deciding vote could well come down to a Baytown native, Judge Jennifer Walker Elrod.

Elrod was named to the 5th Circuit Court by President George W. Bush in 2008.

She graduated from Ross S. Sterling High School in 1984 before attending Baylor University and Harvard Law School.

She worked for the prestigious Baker Botts law firm in Houston before being appointed by Gov. Rick Perry to fill a vacant seat on the 190th Civil District Court in Houston in 2002. She was then elected to the position.

A Baytown Sun article from 2008 quoted Elrod as having said being a judge was a life-long goal.

“I wanted to be a judge since the fourth grade,” she said.

Elrod said while she attended James Bowie Elementary School she wrote an essay about becoming the first female U.S. Supreme Court justice.

On Tuesday, attorneys defending the Affordable Care Act faced sharp questions in New Orleans from Elrod about whether eliminating the act’s penalty for not buying health insurance renders the entire law unconstitutional.

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 appeared 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.

Elrod questioned the law’s supporters — attorneys for 20 Democratic-leaning states and the House of Representatives — she said the law’s ‘command’ that people buy insurance appeared intact without the tax penalty and she questioned the mandate’s constitutionality.

Elrod said Congress could have included a “severability clause” when it originally adopted the law in 2010, but instead chose to emphasize the mandate’s importance.

“It seems like they did the opposite,” she said. “If you don’t have the tax, why isn’t it unconstitutional?”

An attorney from California’s Attorney General’s office argued Congress settled the question of whether the mandate penalty can be severed from the law by eliminating the penalty and leaving the law intact.

Obama signed the health care act into law in 2010.

The lawsuit, spearheaded by the Texas Attorney General’s Office, was filed after Congress, in 2017, zeroed out a tax the Affordable Care Act imposed on those without insurance. Republicans had tried, but failed to win full repeal of ‘Obamacare,’ as Trump had wanted.

In challenging the law anew, ‘Obamacare’ opponents cited the U.S. Supreme Court’s 2012 ruling upholding the legislation. In that ruling, conservative justices rejected the argument that Congress could require everyone to buy insurance under the Constitution’s interstate commerce clause. But Chief Justice John Roberts, joining four liberal justices, said Congress did have the power to impose the tax.

While the appeals court considers its decision, which will likely take at least a few months, the federal government says it will continue to enforce the ACA. The court has several decisions on its plate.

It must decide whether the various parties have standing to even bring the lawsuit or intervene in the case. For example, can the two individuals represented by Henneke claim they have been injured by the law, since there no longer is a financial penalty to compel them to comply?

It will consider whether the mandate remains constitutional. The plaintiffs argue the requirement to produce revenue was essential to the Supreme Court finding the mandate a valid exercise of Congress’s power to tax. Take away the revenue, they argue, and the mandate is a command to purchase insurance, which the Supreme Court majority said would go beyond Congress’ power to regulate interstate commerce.

And finally, they must decide if any or all of the rest of the ACA can be saved if the mandate cannot.

If the court only invalidates the mandate, little would change, since the law currently functions with a mandate that has been neutered.

It could also take the position the federal government took at the trial court, invalidating the mandate and the protections for people with pre-existing health conditions but leaving federal funding for subsidies and Medicaid expansion intact. Many Louisiana lawmakers would be happy with that outcome, since a new state law maintains many of the ACA’s protections but lacks the hundreds of millions of dollars needed to keep subsidies intact.

If the entire law is thrown out, the effects would touch nearly every aspect of health care and the insurance marketplace.

Whatever the Fifth Circuit’s decision, it is highly likely to be appealed to the U.S. Supreme Court. And that decision could come down in 2020, shortly before the next election.

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