‘Absent the individual mandate, the ACA is an irrational regulatory regime…’

Obamacare’s ‘Potentially Unconstitutional’ Feature Set For Reckoning

(Noam N. Levey, Los Angeles Times) The long national legal war over the Affordable Care Act will resume in a Texas courtroom Wednesday as a federal judge hears arguments in a new lawsuit seeking to wipe out the 2010 law, often called Obamacare.

If successful, the suit—brought by 20 Republican governors and state attorneys general—could upend health coverage for tens of millions of Americans who have come to depend on the law.

At the same time, the case is emerging as a major flashpoint ahead of the fall midterm elections as Democrats highlight Republican efforts to roll back the law and its protections for people with pre-existing medical conditions.

The Trump administration has inserted itself in the fight, backing part of the Republican suit and arguing that provisions in the health care law that prohibit insurers from turning away sick customers or charging them more for coverage should be scrapped.

The foundation of the lawsuit is a provision in last year’s mammoth tax bill that eliminated the tax penalty on Americans who don’t have health insurance, but still preserved the technical requirement that people have coverage.

The requirement and the penalty were once considered integral parts of the health care law. Insurers, state regulators and other experts believed that unless there was a penalty for going uninsured, younger and healthier people would not buy health plans until they got sick, leading insurance markets to collapse.

The penalty was also critical to the health care law’s survival when it first came before the Supreme Court in 2012 in a lawsuit that alleged the law’s insurance requirement was unconstitutional.

Chief Justice John G. Roberts Jr. joined the court’s four liberal justices to uphold the law, but only after concluding that the requirement could stand because it was enforced with a tax penalty.

Now in the Texas case, the 20 governors and attorneys general argue the requirement is no longer constitutional because the tax penalty has been eliminated.

And, they continue, because the requirement is so central to health care law, the whole law cannot survive without it.

“Absent the individual mandate, the ACA is an irrational regulatory regime,” the plaintiffs argue in court papers.

The Texas suit would also eliminate hundreds of billions of dollars in federal subsidies available to low- and middle-income Americans who buy coverage on insurance marketplaces around the country.

The Trump administration decided in June not to defend the health care law in court, fueling a renewed effort by Democrats to highlight Republican hostility to the 2010 law.

GOP lawmakers were torched last year for their effort to roll back the law in Congress, with late Sen. John McCain in one of his final official acts dramatically providing the deciding vote against repeal.

Across the country this summer, Democratic congressional candidates have made preserving Obamacare a cornerstone of their campaigns.

Last week, Vice President Mike Pence doubled down on the opposition, telling reporters that if Republicans do well in the fall midterms, the party would make another attempt to repeal the ACA next year.

Although some consider the Texas case to be a longshot, the federal courts there are considered among the most conservative in the country.

Judge Reed O’Connor, who is hearing the case, has already ruled once against the health care law, blocking enforcement of a regulation issued by the Obama administration that he said would have required physicians to perform gender transition surgery and abortions despite religious objections.

Liberty Headlines’ Ben Sellers contributed to this report.

(c)2018 Los Angeles Times. Distributed by Tribune Content Agency, LLC.