- The Washington Times - Friday, December 14, 2018

Obamacare is fatally flawed and should be considered null and void, a federal judge said Friday in a bombshell ruling that sides with state Republicans who argue the GOP-led Congress’ decision to gut the “individual mandate” penalty for going uninsured makes the rest of the program invalid.

The court “finds the individual mandate, unmoored from a tax, is unconstitutional,” U.S. District Court Judge Reed O’Connor, an appointee of President George W. Bush presiding in Texas, wrote in his opinion.

The decision is a huge swipe at the 2010 law and sets the stage for a bigger fight in appeals courts. It will also reverberate on Capitol Hill, where Democrats are set to retake the House majority after running on a pro-Obamacare platform and criticizing GOP candidates who failed to devise a fallback plan if the lawsuit is tossed in the end.

Its timing is also remarkable, coming roughly 24 hours before the deadline to enroll in Obamacare-related coverage on the federal website serving much of the country.

Twenty Republican-led states had argued the Supreme Court cast Obamacare as a package deal, with the mandate to hold insurance — or else pay a tax — tethered to the law’s goodies.

Congress slashed the mandate’s tax to zero, starting in 2019, as part of its tax-cut bill. The states said the rest of the law should fall with it, including protections for people with preexisting medical conditions like cancer or diabetes.

Analysts said the ruling might cause chaos in the final hours of Obamacare enrollment but wouldn’t have an immediate effect on coverage, since the mandate penalty doesn’t shrink to zero until the new year and liberal officials will move for a stay.

The Trump administration did not defend the law in court, and sided with the states on some points. Yet it asked the judge to wait until open enrollment was complete, to avoid chaos in the markets. 

But that didn’t happen.

The law’s consumer protections, subsidies and expansion of Medicaid coverage are now all at risk under the ruling, which would invalidate the entire law. The administration had suggested that only the parts of Obamacare requiring insurers to accept sicker Americans and charge them the same as healthy ones should be invalidated.

Still President Trump, who lambasted his own party for failing to repeal and replace the law as promised, applauded the decision.

Texas Attorney General Ken Paxton, who spearheaded the lawsuit, said the ruling “will give President Trump and Congress the opportunity to replace the failed social experiment with a plan that ensures Texans and all Americans will again have greater choice about what health coverage they need and who will be their doctor.”

Mr. Trump told Senate Majority Mitch McConnell and House Minority Leader Nancy Pelosi, poised to become speaker, to “get it done” in his tweets.

But Democrats are certain to wait out the case in appellate courts or recommend easier fixes to restore the mandate. They said the ruling exposed the GOP’s promises to protect sicker Americans as a con.

“When House Democrats take the gavel, the House of Representatives will move swiftly to formally intervene in the appeals process to uphold the life-saving protections for people with pre-existing conditions and reject Republicans’ effort to destroy the Affordable Care Act,” Mrs. Pelosi said.

Meanwhile, states that support the law scrambled to limit the fallout from the ruling, saying residents can still find coverage on the exchanges through late Saturday or deadlines set by states with their own portals.

House Majority Whip Steve Scalise boasted his chamber passed a law to replace Obamacare in May 2017, however, leaving the situation in chaos.

Red states filed the lawsuit after the GOP failed to replace the law legislatively in 2017. Their efforts faced a major public backlash and were the focal-point of Democratic effort to flip seats during the mid-term campaign. 

The strategy worked, as Democrats flipped dozens of House seats to retake the majority.

Blue-state attorneys general intervened the pending case, saying the 2010 Affordable Care Act should stand because the tax will still be on the books, even if it isn’t actively collecting revenue, and that Congress decided to keep the rest of Obamacare in place despite gutting the penalty.

A few congressional Republicans also thought the arguments posed in the lawsuit were absurd, noting no one in Congress imagined that rest of the law would be struck by their decision to gut the individual mandate in their tax law.

Judge O’Connor disagreed, saying Chief Justice John G. Roberts was clear in his 2012 opinion that tethered the law’s benefits to the tax, despite what Democrats wanted to achieve eight years ago.

“In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses,” he wrote. “The former enacted the ACA. The latter sawed off the last leg it stood on.  But however one slices it, the following is clear: The 2010 Congress memorialized that it knew the individual mandate was the ACA keystone.

It’s unclear where the appeals courts will land. Analysts have cast doubt on the plaintiff state’s arguments, and Justice Roberts remains the swing vote at the Supreme Court, despite the conservative majority on the court ushered in by Justice Brett Kavanaugh’s confirmation.

For now, Democrats are fuming, saying it would upend health insurance for millions of Americnas.

“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court,” said California Attorney General Xavier Becerra. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”    

The American Medical Association decried the ruling as “an incredible step backward” for the U.S. health care system.


 

 


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