- The Washington Times
Monday, July 29, 2019

The man who launched the lawsuit that has imperiled Obamacare says he’s not sorry.

Texas Attorney General Ken Paxton led a coalition of Republican-run states last year in filing a lawsuit arguing that without the “individual mandate” penalty, which Congress stripped a year earlier, the rest of the Affordable Care Act couldn’t survive constitutional muster.

A judge agreed and, though the case is on appeal and Obamacare remains in operation, the chance that higher courts will agree with Mr. Paxton has roiled Capitol Hill for months. Democrats gleefully tell voters that Republicans are threatening their health care, while Republicans fret that they have yet to come up with a backup plan.

Mr. Paxton says they have only themselves to blame.

“They’ve had plenty of time. When did Obamacare get passed?” he told The Washington Times in an interview. “They’ve had almost a decade to fix it, and there’s been really no action.”

The goal, he said, is to clear the decks for Congress. He said federal lawmakers should respond by letting the states do what they want with block grant money from Capitol Hill. California can embrace its own version of full Obamacare while Texas finds a market-based solution.

“I want to be alive when they change it,” Mr. Paxton said.

He has taken the same aggressive approach on immigration. It was his lawsuit, again joined by other Republican-run states, that challenged the legality of the Obama-era Deferred Action for Childhood Arrivals deportation amnesty that grants temporary protection to illegal immigrant “Dreamers.”

Mr. Paxton’s lawsuit spurred the Trump administration to try to cancel DACA in 2017. That phaseout is being challenged in courts, with the Supreme Court scheduled to hear the case in the fall. Mr. Paxton, though, moved ahead with his own lawsuit against DACA and won a favorable decision — though the judge delayed his own ruling to let the matter play out at higher levels.

“Some people argue, ‘Well, [the children are] a more sympathetic cause. Why would you file the lawsuit?’” Mr. Paxton said. “It’s not up to the president to be sympathetic. His job is to follow the law, follow the Constitution. If Congress wants to be sympathetic, they need to change the law. In this case, they didn’t change the law.”

The twin fights offer a window into Mr. Paxton’s philosophy, even if some in Washington see him as a troublemaker who is forcing them into political minefields that are hard to navigate in a divided government.

“I swore to uphold the Constitution,” he said. “I didn’t swear to make everybody clean and comfortable. My job is to focus on making sure that laws are followed.”

Mr. Paxton said it will take time for his challenge to DACA to wend its way to the Supreme Court, and the justices may make the issue moot if they agree with President Trump’s phaseout.

Still, Mr. Paxton views the phaseout case as a “sideshow” to his effort, which goes to the core of a president’s flexibility to use immigration laws to grant tentative legal status to hundreds of thousands of people who are in the country without authorization.

“I think our case is a slam-dunk because we won one just like it. And I think their case is ludicrous,” he said.

He is just as confident about his challenge to Obamacare.

Mr. Paxton’s lawsuit, filed in February 2018, says the Affordable Care Act’s constitutionality flowed from the existence of the individual mandate, which was at root a tax penalty. Chief Justice John G. Roberts Jr., in a key ruling in 2012, said the law was constitutional under Congress‘ powers to tax.

When Mr. Trump signed the Republicans’ tax cut bill in 2017, one key element was to zero out the mandate penalty.

No penalty means the rest of the law must fall, Mr. Paxton and his allies argue.

Trump administration attorneys initially tried to cut a more modest path, saying that while parts of the law must go, other parts could survive even without the mandate. But once a federal district judge ruled in Mr. Paxton’s favor, the administration changed its stance and embraced Texas’ entire challenge.

Mr. Trump has predicted that once Obamacare disappears, lawmakers will be more willing to write a replacement.

Democrats doubt that logic and point to Republican struggles to move anything when it controlled the House, Senate and White House.

“It’s about as comforting as an arsonist telling you he’ll figure out how to rebuild your house after he burns it down. Here’s an idea: How about Republicans put away the matches instead?” Sen. Patty Murray, Washington Democrat, said in a floor speech last week.

Mr. Paxton said Obamacare hasn’t been working, so burning it down is the point.

Key Republicans, including Sens. Lamar Alexander of Tennessee and Susan M. Collins of Maine, say they never saw the 2017 repeal of the individual mandate as a backdoor way to kill Obamacare.

Mr. Paxton’s opponents in court have seized on that, saying Congress could have knocked out the rest of the program if it wanted to but it left Obamacare intact.

Judge Jennifer Elrod, a George W. Bush appointee to the 5th U.S. Circuit Court of Appeals, which is handling the case now, said it’s hard to divine what every lawmaker had in mind.

“How do we know that some members of Congress didn’t say, ‘Aha, this is the silver bullet that’s going to undo the ACA’?” she wondered during oral arguments this summer.

Mr. Paxton said he didn’t plot with lawmakers before their tax bill paved the way for his novel lawsuit. He said he didn’t have to because the implications were obvious.

“It was like a neon sign. It was in the middle of the one case dealing with Obamacare,” he said, referring to Chief Justice Roberts’ 2012 opinion.

“They’re not stupid, right? The Obamacare decision was out there,” he said of lawmakers. “I have a feeling that some of those guys read the Obamacare decision and they knew the individual mandate was supported by this penalty. Without the penalty — shazam — the whole argument for it goes away.”

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