Congressional Republicans no longer seem to be talking about repeal or replacement or reform of Obamacare, but that doesn’t mean that the effort to rid the country of the onerous health insurance law is dead. The latest attempt on the life of Obamacare comes from Texas Attorney General Ken Paxton and early indications are that it may have a better chance at success than previously thought.
The lawsuit is based on the facts that Justice John Roberts’ majority decision preserved the Obamacare mandate as a tax and that Republicans later eliminated the tax penalty for not purchasing health insurance, essentially eliminating the mandate. The Republican plaintiffs argue that the Affordable Care Act is now unconstitutional because the law depended on the mandate to make the system work and the mandate has now been removed.
“There is no real true mandate because the tax is eliminated,” Darren McCarty, special counsel for the Texas Attorney General’s office, argued in federal district court. “The ACA is unconstitutional on its face.”
The Texas lawsuit has been joined by 20 states and the Trump Administration Department of Justice. While the state attorneys general are asking for the court to strike down the entire law, the DOJ is only seeking to invalidate certain portions of the law such as those that deal with coverage for people with pre-existing conditions and limits on how much insurers can charge people based on gender and age.
Defense of the law has been picked up by Democrats who argued that striking down the law would harm the millions of Americans with pre-existing conditions.
“The harm of striking down the ACA…would be devastating,” said Nimrod Elias, a California deputy attorney general defending the law.
The case hinges on whether Congress eliminated the mandate by removing the penalty. While the mandate is still technically part of the law, it will be unenforceable when the penalty expires.
Telltale signals from U.S. District Judge Reed O’Connor give opponents of the law hope for a friendly ruling. Observers said that O’Connor’s line of questioning often echoed the views of the Obamacare critics. The judge also asked questions about severability, whether other parts of the ACA could remain in force without the individual mandate.
O’Connor, who was appointed by George W. Bush, has ruled against the ACA in the past, issuing a temporary injunction against a regulation prohibiting price discrimination based on age and gender in 2016. Judge O’Connor said that he will deliver a ruling as quickly as possible, meaning that a decision before the midterm elections is likely.
Whether the decision strikes down all or part of the ACA or lets it stand, it could have an effect on the midterms. Democrats are using the threat to the law, which has become more popular since Donald Trump took office, to build support for midterm candidates. For their part, Republicans would use a decision against the law to show their base that they are making progress against government encroachment.
Conservatives shouldn’t get their hopes up. Lawsuits against Obamacare that looked more promising have all gone down to defeat and if O’Connor rules against the law, Democrats are certain to appeal. The case could eventually have the Supreme Court rule once again on the constitutionality of Obamacare.
In the meantime, a ruling against the law could not come at a worse time for Republicans. With GOP candidates already battered by association with an unpopular president, a ruling that allows Democrats to paint Republicans as hostile to people with pre-existing conditions would not help the party’s chances of holding Congress.
Originally published on The Resurgent
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