Now that the individual mandate is gone, 20 States sue to completely eliminate Obamacare once and for all

By Robert Laurie —— Bio and Archives February 27, 2018

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Back in 2012, pretty much everyone thought ObamaCare was going to be struck down as unconstitutional. The Obama admin had claimed, repeatedly, that the healthcare law was not a tax and that seemed to be the only way to justify its existence. Then, sadly, Justice John Roberts basically re-wrote the law, decided - despite the administration's own arguments - that Obama's signature law was a tax, and upheld it based upon Congressional taxation powers. It was about as baffling a decision as anyone has ever seen and, obviously, it's been controversial ever since. Now, a coalition of 20 states has filed a lawsuit arguing that ObamaCare is no longer unconstitutional.

The argument goes like this: The GOP's 2017 tax overhaul eliminated the tax penalty for not having insurance. Since that was the paper-thin pretense on which Roberts rested his claim that ObamaCare was a tax, the states are saying that the rest of the law is now unconstitutional. From The Hill:

The lawsuit against the federal government, led by Texas Attorney General Ken Paxton (R) and Wisconsin Attorney General Brad Schimel (R), was filed Monday in the U.S. District Court in the Northern District of Texas. In 2012, the Supreme Court ruled 5-4 that ObamaCare’s individual mandate was constitutional because Congress has the power to levy taxes. The lawsuit points to that part of the ruling in its argument that the law is no longer constitutional. The GOP tax law “eliminated the tax penalty of the ACA, without eliminating the mandate itself. What remains, then, is the individual mandate, without any accompanying exercise of Congress’s taxing power, which the Supreme Court already held that Congress has no authority to enact,” the complaint states. “Not only is the individual mandate now unlawful, but this core provision is not severable from the rest of the ACA—as four Justices of the Supreme Court already concluded.” ...“The U.S. Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional,” Paxton said in a press release. “With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all.”

All of this raises a couple of questions. The first is; will the Trump administration offer a legitimate defense against this lawsuit? Since the President made the ACA's elimination a core plank in his 2016 platform, it's easy to imagine that they might want the lawsuit to succeed - thus clearing the path for whatever replacement they want to propose. They could either offer a half-hearted defense or decide to just walk away completely. The second is; will the severability argument hold? Ed Morrissey breaks it down well over at HotAir, saying:

The problem for the lawsuit will be whether the courts will find severability between a suddenly unconstitutional (but also toothless) individual mandate and the rest of ObamaCare. Actually, as the opinion notes, the Eleventh Circuit had previously ruled that the mandate was severable from the rest of ObamaCare, a ruling which Roberts incorporated into his majority opinion even while making the issue moot. Severability became a much bigger issue for the forced Medicaid expansion that the ACA imposed on states, which NFIB v Sebelius discusses mainly in the dissent from the four conservative justices that wanted to overturn the entire ACA. In the end, though, the severability argument won there too, which is how the court struck down part of the Medicaid expansion without overturning the entire ACA. The question then becomes how strong that precedent on severability will be with this court.

Regardless of the outcome, the lawsuit is worth a shot. ...Especially since, as the Hill points out, the GOP "has largely moved on from its goal of eliminating the health-care law." With Republican Party interest waning, this suit could be the "last best chance" at eliminating this mess once and for all.