February 27, 2018 – Twenty Republican state attorneys general are seeking to overturn the Affordable Care Act in a lawsuit that argues the law is unconstitutional now that Congress has repealed its tax-based penalty on individuals who don’t have health insurance.
The lawsuit, filed this week in federal district court in the Northern District of Texas, focuses on the individual mandate, which is the ACA’s requirement that most people have health coverage or pay a penalty.
Congressional Republicans late last year ended the penalty starting in 2019, but the requirement to have insurance technically remains. It is unenforceable without a penalty, however.
The Supreme Court ruled that the mandate was constitutional in its landmark 2012 ruling upholding the ACA, because the penalty fell within Congress’s taxation powers. The removal of that penalty, the GOP state officials argue, renders the mandate unconstitutional and the broader law invalid.
“Once the heart of the ACA—the individual mandate—is declared unconstitutional, the remainder of the ACA must also fall,” the lawsuit said.
Republicans have failed in the past to have the ACA overturned in the courts. In this case, the plaintiffs face a number of challenges, legal experts said. The states will have to prove they have standing, which means they have to show they have experienced or will experience harm, and that is difficult to demonstrate now that the penalty has been repealed.
The litigation reflects a desire by many conservatives to press ahead with efforts to topple the law completely, going beyond recent efforts by the Trump administration to dismantle it piecemeal.
That quest is driving the lawsuit, as well as efforts by some House Republicans who are pushing for a repeal of an ACA requirement that many employers provide health coverage or pay a penalty.
At least one of the judges where the lawsuit was filed, Judge Reed O’Connor of Fort Worth, has taken action before against the ACA. In 2016, he issued a temporary injunction to block an Obama regulation that prevented discrimination in health care against people based on their gender identity or history of abortion. Judge O’Connor was appointed by former President George W. Bush.
“It’s basically a nuisance lawsuit, but they found this judge who may be receptive to it, so they may get to first base,” said Timothy Jost, an emeritus professor at the Washington and Lee University School of Law.
The state attorneys general say it is clear that the repeal of the insurance coverage penalty means there is no remaining legitimate basis for the ACA.
“Through our multistate lawsuit, we hope to effectively repeal Obamacare, which will then give President Trump and Congress an opportunity to replace that failed experiment with a plan that ensures Texans and all Americans have better choices for health coverage at more affordable prices,” said Ken Paxton, the Texas attorney general, in a statement.
The lawsuit was also filed by Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Wisconsin and West Virginia.
All those states are led by Republicans, with the exception of Louisiana, which has a Democratic governor and a Republican attorney general.
The ACA, which significantly cut the number of uninsured in the U.S., includes an expansion of the Medicaid program, federal subsidies to help lower-income people afford health premiums, an array of taxes and insurance requirements.
By Stephanie Armour, The Wall Street Journal
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