20 states sue federal government, trying to pull the plug on Obamacare
Additionally, Idaho OK’s plans that do not adhere to ObamaCare onerous coverage requirements.
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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Comments
Leslie, excellent post, but I think you’re mischaracterizing the legal argument when you say “the law is no longer constitutional after the repeal of the mandate.”
The mandate was actually never repealed. It was the tax penalty that was repealed. The states’ argument is therefore that, since the mandate is no longer constitutional without the Obamacare tax, and since the rest of the statute can’t be severed from the tax, the entire Obamacare scheme must be tossed.
There never was any mandate. It was a tax, and now it’s an ex-tax.
Respectfully, I disagree. As originally drafted by Congress, there was a direct, express command that you must purchase health insurance conforming to the statute. It was the Supreme Court that construed this language not to mean what it expressly says, but as a command that you must purchase conforming health insurance, or pay a tax penalty.
Since the tax has now been repealed while the express command to purchase health insurance remains, the question arises, how will the Supreme Court construe the express command to buy insurance now that it no longer has the option of construing it as a tax penalty? It seems to me that the only logical answer is that the Court has to construe it as what it is, i.e., a command, and an unconstitutional one.
That said, I don’t want to predict what the Court will actually do. It could contort all logic and find that Congress couldn’t have intended to act unconstitutionally when it repealed the tax penalty, and that the repeal itself is therefore unconstitutional; or perhaps it will again construe the mandate as a tax penalty, but one that simply happens to be currently set to zero (i.e., as some kind of tax holiday.)
The one thing that seems clear to me, however, is that it won’t be easy for the Court to dismiss the plain words of the statute, which still command nearly everyone to buy health insurance.
How could you argue with Milhouse?
Don’t you know that he is a bona fide legal expert from all of his years of law school, legal training, experience, and tests by fire?
Don’t you know how many cases he has developed, briefed, argued and won?
[Sarcasm Off]
Sorry, I think the argument makes no sense. The Supreme Court did not rule that the mandate was constitutional because it was tied to a tax, it ruled that it was a tax. It ruled that there never was a mandate, that what everyone was calling a mandate had none of the essential traits of one, and all the essential traits of a tax, so that was what it was; and since Congress has the authority to impose taxes, it was constitutional. So it was a tax, and now Congress has repealed it. That doesn’t make it unconstitutional, it makes it no longer the law.
PPACA used to give you a choice: Don’t buy insurance and pay an extra tax on your income, or buy insurance and don’t pay the tax. Now the choice it gives you is: Don’t buy insurance and don’t pay the tax, or buy insurance and don’t pay the tax. You are just as entitled to take option 1 now as you were then. It’s just more attractive now. So where’s the unconstitutionality?
Those are my thoughts as well.
The unconstitutionality is that Article I, Section 8 doesn’t grant congress the power to regulate health insurance or the practice of medicine. Chief Justice Roberts ruled that Obamacare was only constitutional because it fell under the legitimate power to tax. Now that’s gone.
On the contrary, nobody disputed Congress’s power to institute most of the Act, under the interstate commerce clause. The only items disputed were its power to mandate that people engage in commerce by buying insurance, and its power to force states to expand Medicare. On both questions the Supreme Court said Congress had no such power. The “mandate” survived only because the Court found Congress had lied about what it had done, that Congress had actually secretly passed a tax but given itself political cover by calling it something else.
I’m certain none of those lawyers with years of experience could not know more than you, Milhouse.
That is why there is such a groundswell effort to make internet poseurs like you attorneys general and judges.
No, SCOTUS did not say that. It said that they had to look at it in every way for it not to be unconstitutional.
The question it was asked was the mandate (you shall purchase) and a penalty (if you don’t then pay money) unconstitutional under commerce clause? The answer was yes, it is unconstitutional under that reasoning.
However they also looked at it a different way to see if the “penalty” could be a tax. They found that it functioned as a tax and could be accurately called a tax. As the named “penalty” was a tax, the mandate simply functioned as a condition of tax payment.
There is no longer a tax. The command to do something is still there. It is no longer a condition of a tax. It is a mandate without a penalty.
But there is no command to do something. It remains perfectly lawful to choose not to buy insurance, just as it was when the case was decided. All that has changed is that the tax which one may choose to pay instead has been reduced to zero. So one may buy insurance and pay nothing, or one may not buy insurance and pay nothing. It’s entirely up to each person. That is not a mandate.
Roberts changed the mandate to a tax, which really wasn’t his job to do. The mandate penalty was not constitutional if it wasn’t a tax. Obama and the Democrats said it wasn’t a tax, yet when challenged in the Supreme Court Roberts switched sides (at least according to how it was written up and how those judging against it had commented) and rewrote the law to make it a tax.
Not sure if this will fly or not, but Obamacare is a terrible law that has increased premiums, decreased coverage for many people by forcing ever higher deductibles and co-pays. The Democrats planned this as a step toward universal healthcare coverage under government control.
The real issue with removal of the tax for not purchasing coverage makes the costs unsustainable. The tax for mandating coverage was to cover the costs of the exchanges and give away moneys from the Federal Government. Or in reality, cover a small portion of those costs.
A lot of people have healthcare coverage that is of little to no value. Many plans have your out of pocket expense so high you almost never reach the amount of your deductible. It was, of course, never meant to be affordable healthcare. The people who will be uninsured if this mess goes away will mostly be those who would never meet the deductible for the coverage they can afford. So is that really taking away their healthcare coverage?
And this really isn’t healthcare, this is insurance, which is not the same thing.
Roberts did not change the mandate to a tax; he looked at it objectively and found that it was a tax. Yes, 0bama and the Democrats swore up and down that it wasn’t a tax; so what? Since when did you start believing them? The Court found that they lied. Who here was surprised at that?
Yes, Roberts changed his view, because he’s an honest judge and when he looked at the evidence objectively he became convinced that his previous view had been mistaken. He’d believed 0bama’s lie that it was not a tax but a mandate; on looking at it he realized he’d been taken in, and there was no mandate.
Yes, it’s a terrible law, but without the mandate and the compulsion on the states it’s not unconstitutional.
As I see it, as long as the ObamaCare tax penalty stays on the books, even as a placeholder and without any force of law, it can be re-implemented at a later date without any input from voters. Consider, for example, income tax; We the People have no voice over what gets taken from our incomes, and even it is reduced to 0%–which would be great–the law still exists and it is regularly used against us by varying the amounts that get taken, and we have no option. To permanently reduce it to 0% would require repealing income tax altogether.
Back on topic, as I see it, they state AGs are trying to forcibly remove the tax/fine/fee mandate from the books altogether, not merely take the teeth out of it so it cannot be re-implemented without the debate and vote of the Senate and the House.
The tax is effectively off the books. It’s been reduced to zero, and it can’t be changed without the debate and vote of the Senate and the House, and the president’s signature.
26 U.S. Code § 5000A – Requirement to maintain minimum essential coverage
(a) Requirement to maintain minimum essential coverage
An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.
“An individual shall be covered” is a mandate.
man·date
ˈmanˌdāt
noun
1. an official order or commission to do something.
Chief Justice Roberts invented a new definition of taxation that contravenes long-standing precedent. On the plus side, he delineated the limits of the Commerce Clause and the 10th Amendment. Then ruled that Congress could pass the law under its taxation authority.
The only reason the Chief Justice even considers whether the mandate could be considered a tax, is because of his prior conclusion on rejecting the possibility that the mandate could be justified in the Commerce and Necessary and Proper Clauses.
FYI: It has been reliably reported that the first three-quarters of the joint dissent opinion was drafted in Chief Justice Roberts’ chambers in the first months of deliberation. (He chose optics over reaffirming that the Constitution creates a federal government of limited and enumerated powers and used taxation to justify his change of mind).
If there is no taxation, then 26 U.S. Code § 5000A, Paragraph (a) is unconstitutional. The rest of the PPACA probably stays on the books.
Keep in mind that the Supreme Court is populated by people who can do whatever the hell they want, full stop, period.
That is simply false. The definition conformed exactly to the court’s precedent, going all the way back to the New Deal, when Congress tried to disguise an unconstitutional penalty as a tax. The Court rejected Congress’s pretense, insisted on looking on what the thing was rather than what Congress called it, applied the exact same criteria Roberts used, and struck it down.
Please continue, you mentioned a precedent. Where has a penalty been deemed a tax by the SC? You have provided an example where you say the court found that the Congress’ supposed tax was actually a penalty. Justice Scalia agreed with you, a penalty is a penalty and is not a tax.
Again, I assert that Chief Justice Roberts has reversed the precedent that you raise and he has added to the definition of taxation.
Justice Scalia wrote: “We have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.”
The precedent was a case where Congress said something was a tax and the Court said we don’t care what you call it, we care what it is. It defined the difference between a tax and a penalty and showed how that law did not fit the definition of a tax and did fit that of a penalty, so it was illegal. Roberts did exactly the same thing. He ignored what Congress called this, applied the same criteria that the ’30s court had done, and found that by those criteria this was clearly a tax.
A penalty is indeed a penalty, and this exaction had none of the characteristics of one, so it was not one.
Justice Scalia wrote: “We have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.” In doing so he completely misstated what the majority opinion says. It doesn’t say anything like that. What it does point out, among other things, is that choosing to pay instead of buying insurance is not a violation of the law. It is an option the law allows. That alone makes this not a penalty. That the statute repeatedly calls it one is completely irrelevant, because things are what they are, not what Congress calls them.
I suppose that’s true.
For anyone able to dig a bit, Social Security is the same as the obamacare “mandate”. Social Security is a tax and I believe the courts at the time upheld it (like the “mandate”) as such.
Mill house
Which in the future could VERY well be ALL Democratic hands..
In which case they can just re-pass PPACA.
At least with SS if you live long enough, you get some, and in increasingly, much back. People are living longer, unfortunately many haven’t saved enough and SS is all they got, and yes, they should have saved more, but everyone does not make 100,000/year or more.
It would be helpful to have mandatory living skills classes instead of Gender studies and White privilege .