- The Washington Times - Monday, February 26, 2018

Twenty states filed a lawsuit Monday arguing the new law President Trump signed last year revoking Obamacare’s individual mandate actually makes the rest of the 2010 health law unconstitutional as well.

Led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel, the lawsuit says the individual mandate — upheld by the Supreme Court in 2012 — was the crux of the Affordable Care Act’s legality.

Chief Justice John G. Roberts ruled that the mandate — and thus most of the ACA — was constitutional under Congress’s taxing powers. But the attorneys general say if the government isn’t collection money under the mandate, it’s not using the taxing power, so the law no longer has legal underpinnings.

“The country is left with an individual mandate to buy health insurance that lacks any constitutional basis,” the states said in their lawsuit. “Once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall.”

The lawsuit says Congress deemed the mandate to be “essential” to the law, since healthier people would be goaded into the market to balance out sick people who could no longer be denied or charged higher premiums.

“Absent the individual mandate, the ACA is an irrational regulatory regime governing an essential market,” according to the lawsuit filed in the U.S. District Court for the Northern District of Texas.

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The AGs are suing the Trump administration, a politically ally that loathes the law, but it could put Mr. Trump’s Justice Department in an awkward position.

The administration had pushed to have a suitable replacement on hand before gutting the law, but it’s efforts failed last year. Nearly 12 million people recently selected coverage up on its linchpin exchanges, and millions more gained coverage through its expansion of Medicaid in dozens of states.

“[Attorney General] Jeff Sessions is in a tough spot. I can’t see him filing a brief arguing that Obamacare’s mandate is constitutional!” Josh Blackman, a professor at South Texas College of Law, said in an email. “They will likely argue that the states lack standing, or other jurisdictional points.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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