5:10 p.m. ET, July 9, 2019
Judge suggest eliminating individual penalty jeopardized basis for entire law
From CNN's Dan Berman
Speaking about the Affordable Care Act, Judge Kurt Engelhardt, a President Trump appointee, asked, “If you no longer have the tax, why is it still constitutional?”
He noted that Congress could have included a severability clause to ensure that while the individual mandate was eliminated, it wanted the rest of the law to remain.
“Instead, they did the opposite, he said.
Samuel Siegel, California's deputy solicitor general, said that in fact, because Congress only acted on the mandate, it didn’t want the rest to be touched.
“The entire Affordable Care Act can cooperate without the individual mandate,” he said, noting that some lawmakers were clear they only wanted to act on the tax. Congress, he noted, failed in other attempts to kill the entire bill.
Siegel did not mention the Senate vote where the late Arizona Republican Sen. John McCain cast the deciding vote to end the bill to repeal most of Obamacare, but Trump has consistently mentioned that as he promotes ongoing efforts to gut the law.