“Why would I not” look to the intent of the Congress that enacted the health law, he asked Mr. Elias.
Much of the more than three hours of arguments centered on language in the Affordable Care Act that describes the individual mandate as “essential to creating effective health insurance markets” — language that the plaintiffs said made clear that the rest of the law, or at least the pre-existing condition protections, could not function without it.
“What better could you have than these express intents of the Congress?” Judge O’Connor asked.
Mr. Elias replied, “Whatever Congress may have believed in 2010, Congress in 2017 made a categorically different judgment,” deciding to remove the penalty without touching the rest of the health law. He also read quotes from Senators Orrin Hatch, Republican of Utah, and Tim Scott, Republican of South Carolina, who publicly emphasized when the tax bill passed last year that no other part of the health law would be eliminated.
“They certainly did not believe in any way, shape or form that they were taking away subsidies and pre-existing condition protections,” Mr. Elias said.
Judge O’Connor went on to ask whether Congress might have intended to force the courts to invalidate the entire health law by targeting the penalty, knowing it was the reason the Supreme Court held up the law as constitutional in 2012.
The judge, who said he would “get something out just as soon as I can,” also grilled Mr. Shumate about the Justice Department’s position that only the law’s provisions for the individual mandate and pre-existing conditions should be invalidated, instead of the entire law, as Texas wants.
He had the fewest questions for Mr. McCarty, the lawyer for Texas, although he did ask why it disagreed with the Trump administration that a preliminary injunction would be too disruptive.
“Our position,” Mr. McCarty said, “is it doesn’t throw the American health care system into chaos.”