The 5th U.S. Circuit Court of Appeals has ruled in favor of arguments from Arkansas and other states that the Affordable Care Act’s individual mandate to have insurance is unconstitutional and directed a lower court to consider the standing of other provisons in the law.

The opinion vacated the lower court’s sweeping invalidation of the entire act.

The opinion is here. The decision was split 2-1. Judge Carolyn King dissented. She said the mandate now carried no penalty and was unenforceable. Nothing further need be said, she wrote. But now the majority wants to consider whether the rest of the act is enforceable. It’s an easy question to answer, King said. Congress left the rest in place.

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I learned of the decision as  it was it being quoted by Tierney Sneed, a writer for Talking Points Memo, in this Twitter thread.

The court sent the case back to a Texas district court  for additional analysis of remaining provisions of the Affordable Care Act as they “currently exist.” These include such popular provisions as Medicaid expansion, coverage of pre-existing conditions and coverage of children up to age 26.

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The court opinion said the individual mandate could no longer be read as a tax, as it was when the U.S. Supreme Court let the ACA stand in a 5-4 decision. Congress removed the penalty. It was that charge that validated the law, the Supreme Court ruled. Congress failed repeatedly to repeal Obamacare, but it did remove the penalty.

Attorney General Leslie Rutledge of Arkansas joined 19 other states led by Republicans to attack the law.

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The 5th Circuit decision will eventually go back to the U.S. Supreme Court and likely will be stayed pending appeal. It’s unclear how that will affect the timeline on the opinion’s direction for further lower court analysis of various provisions of the law by the district court that originally issued a sweeping invalidation in the case known as Texas v. Azar.

The 5th Circuit directed the lower court to consider what provisions of ACA are severable from the individual mandate. It also directed the court to consider the federal government’s suggestion of enjoining only provisions that damage plaintiffs or only enjoin them in plaintiff states like Arkansas.

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The law has been a financial windfall for the state budget and it added health coverage for more than 300,000 additional people, a number reduced somewhat after the Hutchinson administration’s attempt to impose a work rule on recipients. That rule has been struck down in court, but the difficulties in reporting on the law seem to have produced a permanent reduction in the number served.

Upending the law entirely would return the issue to the states to decide to continue the benefits of what was known as Obamacare. Arkansas isn’t well-equipped financially for this nor is it disposed to do so philosophically.

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