California Attorney General Xavier Becerra and a coalition of blue states have asked the Supreme Court to take up a case that argues Obamacare is no longer constitutional because Congress zeroed out the law’s tax penalty for shirking insurance.
In filing the petition last week, Mr. Becerra said an appeals court in New Orleans left too much uncertainty when it struck down the Affordable Care Act’s “individual mandate” but asked a lower court to comb through which parts of the law should fall with it.
The blue states say the U.S. Court of Appeals for the 5th Circuit got the decision wrong and has prolonged uncertainty about a case that could affect millions of Americans’ health coverage and a huge swath of the U.S. economy.
“We’re asking the Supreme Court to swiftly resolve this repeal lawsuit for the sake of saving lives and ending uncertainty in our health care system,” Mr. Becerra said.
He wants the justices to rule on the case before the end of their term in June, a scenario that would inject the highly charged debate into the middle of the 2020 campaign.
Mr. Trump and his Republican allies failed to replace Obamacare as promised in 2017. But later that year, they used a tax bill to zero out the part of the law that requires Americans to get insured or pay a tax.
State Republican plaintiffs seized on that change, reasoning that if the mandate is no longer collecting money, is it not the “tax” that Chief Justice John G. Roberts relied upon in upholding the health law five years earlier.
Blue-state attorneys general have argued in court the mandate is still on the books and, furthermore, Congress clearly intended to leave the rest of the law alone when it gutted the mandate.
A district court judge in Texas agreed with the red states, setting up the appellate decision that was released Dec. 18.
The circuit court said it could no longer view the mandate as an enforceable tax, though it is not sure what else is in peril — for example, the protections for preexisting conditions or the expansion of Medicaid coverage in dozens of states and subsidies for middle-class Americans who buy insurance on their own.
President Trump, who loathes Obamacare, called the decision “a win for all Americans and confirms what I have said all along: that the individual mandate, by far the worst element of Obamacare, is unconstitutional.”
However, Democrats see Mr. Trump’s attempts to fiddle with the rest of Obamacare as a winning issue for their side.
They rode the issue to the House majority in 2018 and say the courts should not delay the thorny case against Obamacare until after the election.
“This dangerous repeal case jeopardizes the lives of our families, neighbors, and millions of Americans who rely on the ACA for their health care,” Mr. Becerra said.
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