Twenty state attorneys general have filed a new lawsuit that — like the many lawsuits before it — aims to take down the Affordable Care Act.
The suit, filed in a Texas district court on Tuesday, makes a new legal argument that relies on Congress’s recent repeal of the individual mandate penalty.
Experts I’ve spoken with don’t see this as an especially strong challenge to Obamacare. But, if you know anything about Obamacare lawsuits, you definitely know that we’ve seen multiple cases initially written off by experts as frivolous eventually reach the Supreme Court (King v. Burwell, anyone?)
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Let’s start with the actual argument at play here. This lawsuit starts from Congress’s recent decision to ax Obamacare’s penalty for not carrying health insurance, reducing the fine from $695 to $0 — essentially getting rid of the provision.
In previous rulings, the brief argues, the Supreme Court has stated that this mandate is crucial to making the Affordable Care Act work. The mandate gets healthy people into the insurance market, thus allowing the Affordable Care Act to also require insurers to offer coverage to those with costly pre-existing conditions, too.
With the individual mandate penalty killed, the lawsuit argues that the entire law is no longer workable and ought to be struck down.
”The argument is, essentially, the mandate is fundamental and if the mandate goes, the whole thing has to go away,” says Jonathan Adler, a law professor at Case Western Reserve University who has studied Obamacare litigation.
Or, as the lawsuit itself puts it: “Once the heart of the ACA—the individual mandate—is declared unconstitutional, the remainder of the ACA must also fall.”
This case appears, on a lot of fronts, to be a pretty weak one. For starters, there are questions about whether these state attorneys general could get standing — whether they could demonstrate some sort of harm that gives them the ability to seek remedy in the courts.
Then there is the actual legal argument itself. It relies on analysis that the Supreme Court did before Congress decided to get rid of the individual mandate. Congress presumably understood the role of the individual mandate in the Affordable Care Act — legislators spent an entire year debating the law, after all. Previous lawsuits, like King v. Burwell and NFIB v. Sebelius, often hinged on Congress’s intentions.
But that debate has to change now that Congress has passed a new law that repeals the mandate penalty.
”The lawsuit points back at Congress, saying, ‘Congress would have never crafted a law without the mandate in the first place,’” says Katie Keith, a Georgetown professor who wrote an extensive analysis of the Texas case for Health Affairs. “It completely ignores the fact that Congress just did exactly that. Ruling in favor of this suit would be thwarting the will of Congress, which said they’re okay losing the mandate penalty.”
”They are asking the court to evaluate the current law on the basis of what the law used to be,” Adler says. “That whole analysis just doesn’t apply or work anymore.”
But does this mean the lawsuit is completely frivolous? Not necessarily. Both Adler and Keith could see a district court possibly ruling in the plaintiffs’ favor — as I mentioned earlier, Obamacare litigation is anything but predictable.
This lawsuit is brought by 20 different states, and they no doubt decided to bring their case in a district court that they thought might be more conservative, and more sympathetic to their arguments.
And perhaps even more than that, Keith worries about how the presence of yet another Obamacare lawsuit might embolden states to take their own actions against the law. They might follow Idaho’s example of allowing insurers to offer plans that don’t comply with Obamacare — and point to the uncertainty that this lawsuit creates over whether the ACA will even exist in a year.
”I worry about this shadow hanging over the law, the way that other challenges have,” Keith says. “We’ve all lived through this before. This gives states another reason to act to thwart the law.”
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