With the addition of North Dakota, South Dakota and Wisconsin this week, the lawsuit against the constitutionality of the Affordable Care Act (ACA, or Obamacare) is now being waged in Texas — where the legal action originated — by a combined 23 states.
The crux of the lawsuit, filed by the Texas attorney general, is that the 2010 health care act is no longer constitutional now that the Tax Cuts and Jobs Act of 2017 eliminated the individual mandate’s penalty.
In a famous 2012 decision, the Supreme Court ruled 5-4 — with Chief Justice John Roberts casting the deciding vote — that the law was constitutional because the individual mandate penalty for not buying health insurance was a tax and not a penalty.
Some states are eyeing their own versions of the individual mandate, along with state-based penalties, to help keep health insurance premium increases down within their borders. New Jersey has already passed enabling legislation.
The Trump Department of Justice (DOJ) has already withdrawn its attorneys from the pending court case and filed a brief arguing that both the individual mandate and the ACA’s prohibition against denying insurance for pre-existing conditions are unconstitutional.
Democrat attorneys general from “blue” states are poised to fight in the law’s defense come court time.