U.S. District Court Judge Reed O’Connor of Ft. Worth, Texas, heard arguments two months ago over a Texas-led coalition’s contention that the Affordable Care Act (ACA, or Obamacare) is no longer constitutional now that the individual mandate has lost its “tax-like” monetary penalty.

aca-on-trial-for-its-lifeBut the judge has yet to rule, though in the past — when hearing cases against Obamacare and an Obama-era rule on gender-neutral bathrooms in schools — it took him less than two weeks to issue injunctions.

“Why hasn’t he ruled yet?” asks Tim Jost, ACA expert and professor emeritus at Washington and Lee School of Law. “I suspect that he is waiting until the election is over because the last thing Republican candidates need right now is another reminder that they are trying to get rid of preexisting-conditions protections.”

Ken Paxton, Texas attorney general who is leading the anti-ACA charge by 20 states, admits the whole point is the demise of the Affordable Care Act.

“We hope to effectively repeal Obamacare,” Paxton has said, “which will then give President Trump and Congress an opportunity to replace that failed experiment with a plan that ensures Texans and all Americans have better choices for health coverage at more affordable prices.”

Now that the elections are mostly over except for a few still-contested races, the judge can be expected to issue a ruling. But if he strikes down the whole legislation and not just the individual mandate or the preexisting conditions mandate, how will a newly divided Congress ever hope to come up with a replacement?

Meanwhile, any ruling is sure to be contested, first at the 5th U.S. Circuit Court of Appeals in New Orleans, and potentially before the Supreme Court, where Chief Justice John Roberts provided the deciding vote on the ACA in 2012.

And therein lies the rub — the chief justice said the law was constitutional because it was a tax (the individual mandate). Now that there is no tax, enter AG Paxton and others to argue the ACA is no longer constitutional.