- The Washington Times - Tuesday, February 27, 2018

Texas Attorney General Ken Paxton, leading the latest attempt to kill Obamacare in the courts, said Tuesday the Trump administration should “let us win” instead of defending the program, saying a victory could be the spur that Congress needs to replace the 2010 law after several failures.

In a new lawsuit, 20 Republican-led states say Congress‘ decision to revoke the financial pain tied to Obamacare’s individual mandate makes the rest of the 2010 health law unconstitutional as well, after Chief Justice John G. Roberts opted to “compress” the tax penalty with the legal requirement to hold health insurance.

It’s the latest in a long line of suits against President Obama’s signature health law — although this time, it’s the Trump administration who’s being sued and must decide whether to defend the program, which remains on the books after GOP’s repeal-and-replace efforts failed.

“We’re hopeful that [Mr. Trump] doesn’t pass judgement,” Mr. Paxton said, adding he only defends Texas statutes he deems constitutional. “Certainly, the president has been very critical of Obamacare.”

The Republican attorneys general said they didn’t coordinate with the White House or even give them a heads up until Monday, when officials at a D.C. meet up asked them if there is anything else on their minds.

“We informed them, ‘Well in about an hour and half we’re going to be suing you,’” Wisconsin Attorney General Brad Schimel said. “They’re still assessing the lawsuit. We don’t know how they will address this.”

The Justice Department didn’t return a request for comment on the suit Tuesday.

The plaintiffs say the individual mandate, upheld by the Supreme Court in 2012, served as the crux of the Affordable Care Act’s legality.

Chief Justice Roberts ruled that the mandate — and thus most of the ACA — was constitutional under Congress’s taxing powers. The attorneys general say if the government isn’t collection money under the mandate — Congress just repealed the penalties, effective 2019, in the GOP tax overhaul — it’s not using the taxing power.

The lawsuit says the mandate was considered an “essential” lever to bring healthy people into the markets and cannot be severed from the rest of the program, so the entire law should be struck.

Congress can perhaps get moving forward on whatever steps we need to take as a nation,” Mr. Schimel said. “We believe we’re going to win this, and this lawsuit has great merit.”

Reaction on Capitol Hill has been muted so far.

GOP leaders who led the push to scrap the mandate penalties didn’t put out any statements, and Rep. Mark Meadows, chairman of the influential House Freedom Caucus, said he’s only glanced at news reports about it.

“I really can’t weigh in on it enough, other than I’ve read the headlines and figured it was going to be a while before that actually gets meted out,” Mr. Meadows, North Carolina Republican, said.

The attorneys general said they don’t know how Congress might react, if their lawsuit is successful. Republican leaders might try to pass a quick fix, though the plaintiff attorneys said Congress hasn’t been able to agree on any major decisions of late.

Some of the attorneys general are trying to gut Obamacare even though their states used federal money from the law to expand their Medicaid programs.

They’re hopeful Congress will settle on a suitable alternative that empowers the states. For instance, Mr. Trump wants to cobble together the votes for a replacement that would repackage Obamacare money and siphon it back to states as block grants. A similar effort fell short in September.

Congress may feel goaded to act, and that wouldn’t be a bad thing, given they failed the last time they tried,” West Virginia Attorney General Patrick Morrisey said.

For now, the lawsuit puts Mr. Trump’s Justice Department in an awkward position. The administration hates Obamacare, but it pledged to defend the law while it remains on the books.

Timothy Jost, a law professor at Washington and Lee University who tracks the health care debate, said he expects the Trump administration to defend the law against what he said amounts to “nuisance” suit.

Congress repealed the penalty as of 2019, so they’re now asking the court to act as a super-legislature and repeal a statute that Congress did not repeal,” Mr. Jost said of the state plaintiffs.

Analysts said the administration might try to claim the states haven’t been injured and lack standing to sue, or other jurisdictional grounds.

The plaintiffs said Obamacare’s framework has been a big enough burden for states to seek redress.

Many states, they said, have been forced to take “corrective action, at great cost, to save their insurance markets” from the law’s wobbly economics and failed promises.

“Premium costs did not go down, they went up,” Mr. Schimel said.

Among others, it cited Idaho, which is vetting plans that allow insurers to charge sicker patients more — so healthier consumers can find cheaper options — and lawmakers in Maryland who are exploring their own version of the individual mandate.

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