Using as its basis the Tax Cuts and Jobs Act of 2017, which repealed the tax penalty for not having health insurance, a coalition of 20 states has filed a lawsuit in a Texas federal court asking that the Affordable Care Act (ACA) be declared unconstitutional.
Tennessee Attorney General Herbert H. Slatery III explained the reasoning:
The lawsuit filed today explains that in 2012 in NFIB v. Sebelius the U.S. Supreme Court narrowly upheld the core provision of the ACA—the individual mandate—because the Court viewed ACA’s penalty for not complying with the individual mandate as a ‘tax’. But now, with the recent passage of its tax reform package—the Tax Cuts and Jobs Act of 2017—Congress has repealed this tax, while leaving the mandate in place. Since the Supreme Court has already held that Congress has no authority to impose the individual mandate on Americans without invoking its taxing authority, the repeal of the tax renders the individual mandate unconstitutional. And, since the ACA is dependent on the individual mandate, the ACA itself is now unconstitutional.
“Once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall,” the states wrote in the complaint, filed in federal court in Fort Worth, Texas. By filing in Texas, the states are pursuing the same avenue another coalition used successfully in 2016 to kill the Obama administration’s proposed overtime rule that would have effectively doubled the salary threshold for exemption from overtime.
The effort is being led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel.
Besides Tennessee, the other states are Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin.
The ACA was enacted in 2010 but didn’t take effect until 2014. The individual mandate was seen as a core element that would help keep premiums down by enlarging the risk pool with young, healthy individuals, who would offset the costs of the older, sicker population. The Tax Cuts and Jobs Act abolished the tax penalty for not having health insurance, but that provision doesn’t take effect until 2019.