The last time we looked at the status of former President Barack Obama’s signature legislation, congressional Republicans had pulled the plug on Obamacare’s Independent Payment Advisory Board (IPAB), which Republicans have tagged as the “Death Panel”.

Now, A coalition of 20 U.S. states has sued the federal government over Obamacare, claiming the law is no longer constitutional after the repeal of the mandate.

Led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel, the lawsuit said that without the individual mandate, which was eliminated as part of the Republican tax law signed by President Donald Trump in December, Obamacare was unlawful.

“The U.S. Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional,” Paxton said in a statement. “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,” he said.

In a nutshell, the lawsuit contends that without the mandate, the Court must toss the rest of the “Affordable Care Act”, because the rest of the law cannot be “severed” from the mandate. The Justice Department did not immediately respond as to whether the Trump administration would defend the law in court.

Ilya Somin, Professor of Law at George Mason University, has a detailed analysis on the likely success of this lawsuit. Somin asserts that plaintiffs are right to argue that the mandate is unconstitutional, but are probably wrong asserting that the mandate’s demise requires the court to eliminate the rest of Obamacare along with it.

….In sum, the states deserve to win on the issue of the constitutionality of the individual mandate. But they should lose on severability.

If all this lawsuit is likely to achieve is the removal of the already essentially neutered individual mandate, one might ask whether there is any point to it. It is indeed true that such an outcome would have little or no impact on health care policy. But it would help establish an important constitutional principle: the federal government cannot use its tax power to impose mandates unless that mandate includes a monetary fine that raises some revenue for the government. Otherwise, the mandate is unconstitutional, unless it is authorized by one of Congress’ other powers.

Congress cannot enforce otherwise unconstitutional mandates by means other than financial penalties. Making that clear would limit the damage caused by Roberts’ ill-advised ruling in NFIB, concluding that the ACA individual mandate (in its original form) qualifies as a tax. If courts conclude that the mandate qualifies as a tax even if there is no monetary fine, that might open the door to the imposition of mandates backed by other kinds of penalties.

Meanwhile, Idaho is going rogue and is pursuing an approach to end Obamacare outright.

Gov. Butch Otter and Lt. Gov. Brad Little co-signed an executive order asking the Department of Insurance to seek creative ways to make health coverage more affordable. The move opened the door for plans that don’t adhere to ObamaCare coverage requirements – though with the Trump administration testing similar ideas, the state may be unlikely to face much resistance from the White House.

“Perhaps the example in Idaho can help chip away at ObamaCare,” Little told Fox News.

The state’s insurance department now aims to let insurers sell cheaper, less comprehensive plans that officials project could reduce insurance costs by 30 to 50 percent. Insurance carriers still would have to offer plans on the state’s exchange, Your Health Idaho, while federal subsidies would continue to be available.

A new analysis shows that Obamacare increased everyone’s premiums. Here’s hoping that the states can chip away at this monstrosity and give people good choices that are truly affordable.


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