A federal appeals court questioned Democratic lawyers Tuesday about whether the Affordable Care Act (ACA), popularly known as Obamacare, violated the Constitution.

The judicial scrutiny is the next phase in a case pending in the U.S. Court of Appeals for the 5th Circuit where the appeals court must decide if it will uphold a lower court’s ruling that struck down the landmark health care law.

Attorneys from a coalition of 16 Democratic states and the House of Representatives, and lawyers from the Department of Justice and a group of 18 Republican states, presented their cases to the appeals court in New Orleans.

According to reports from CNN and Reuters, two judges appointed by Republican presidents — one nominated by former President George W. Bush and the other by President Donald Trump — on the three-judge appellate panel grilled Democratic lawyers on whether the law was still constitutional after Congress in 2017 eliminated a tax provision in the law tied to Obamacare’s individual coverage mandate. The other judge, who was appointed by a Democratic president, did not ask any questions, according to CNN.

If the decision eventually goes to the full appeals court, that too is dominated by judges picked by Republican presidents.

Tuesday’s oral argument in New Orleans was part of the latest legal challenge threatening the law’s key features – and possibly the entire 974-page statute.

California Attorney General Xavier Becerra, who is leading the coalition of Democratic states arguing in favor of Obamacare’s continuing constitutionality, said in a statement that the Trump administration was “pressed to explain” why American lives “should be put at risk.”

“If they have their way, millions of Americans could be forced to delay, skip or forego potentially life-saving healthcare,” he said. “Our state coalition made it clear: on top of risking lives, gutting the law would sow chaos in our entire healthcare system.  

“We will fight the Trump Administration tooth and nail,” Becerra concluded.

House Speaker Nancy Pelosi, D-Calif., said Tuesday that Republican lawmakers and the Trump administration are “demanding that the court strike down every last provision of the ACA.”

“The ACA is a pillar of health and economic security, standing alongside Medicare, Medicaid, and Social Security,” Pelosi said during a press conference ahead of the hearing. “But the GOP is showing that they want to destroy the Affordable Care Act for America’s families.”

Texas Attorney General Ken Paxton wrote in an op-ed published on FoxNews.com Tuesday morning that it was time for Obamacare to be struck down so that the states could continue to innovate when it comes to health care policy.

“ObamaCare may be the best thing that Washington bureaucrats could ever hope for, but the truth is we think even bigger in Texas,” Paxton wrote. “It’s time the courts returned control over health care to the laboratories of democracy the founders established so that we can see all that they can accomplish.”

In 2012, the Supreme Court ruled 5-4 that Obamacare was constitutional under Congress’ power of taxation; and did so again in 2015, when it saved the law’s critical tax credits in federal as well as state insurance exchanges.

But in December, federal District Judge Reed O’Connor ruled that by repealing the tax on people who refuse to buy insurance, Congress in 2017 rendered the individual mandate unconstitutional and, by extension, the law itself. The repeal was included in the $1.5 trillion tax cut pushed through the Republican-controlled Congress and signed by President Donald Trump.

That ruling has not been implemented – pending the appeal in New Orleans – but the implications are huge. If the law is wiped out, so too would be insurance for 20 million people, protection for people with preexisting conditions, subsidies for low-income people, Medicaid expansions in many states, coverage for young adults up to age 26 and more.

On one side are the Trump administration and 18 states, led by Texas, that agree with O’Connor’s decision and want the law dismantled. On the other side are the U.S. House of Representatives and 16 states, led by California, seeking to have that ruling reversed. A threshold question is whether the House, and possibly the liberal states, have the required legal authority to defend a law the federal government is not defending.

During Tuesday’s hearing, appellate judges Jennifer Elrod and Kurt Engelhardt quickly cut into the opening statement from Samuel Siegel, the attorney representing the Democratic coalition of states defending Obamacare.

Siegel argued that Congress intended for the health care law to survive despite eliminating the tax provision associated with the individual mandate.

“All the court has to do is look at the text,” he said.

Judge Elrod suggested, however, that maybe lawmakers deliberately ended the mandate because they knew it would upend the rest of the health care law.

“Aha, this is the silver bullet that’s going to undo Obamacare,” Elrod said of lawmakers.

“If you no longer have a tax, why isn’t it unconstitutional?” Elrod also asked.

In addition, Engelhardt seemingly pointed to Congress rather than the courts to resolve the ultimate question of the fate of the ACA. In 2017, Congress — which, at the time, had a Republican-controlled House and Senate  — failed to repeal Obamacare in its entirety.

“There is a political solution here,” Engelhardt said.

The betting line among most legal experts is that a decision reversing the trial judge and allowing the health care law to survive would not be heard by the Supreme Court, which already has spoken on the law’s constitutionality. But if the appeals court agrees that the law should be struck down, the high court is virtually certain to hear an appeal – possibly next year.

The battle lines were three-sided before the December district court ruling. While the two sets of states argued for the Affordable Care Act’s survival or demise, the Trump administration wanted only the individual mandate and associated insurance changes quashed, including protections and cost controls for people with preexisting conditions. 

In his decision, O’Connor said the intentions of both the 2010 and 2017 Congresses had to be considered. “The former enacted the ACA,” he said. “The latter sawed off the last leg it stood on.”

Since then, the administration has joined the conservative states in calling for the entire law to be dismantled. Assembling something to take its place would be left to Congress and individual states.

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