President Donald Trump is forcing his Justice Department, over the objections of his own attorney general, to support the position of a coalition of right-wing states suing to strike down the Affordable Care Act, aka “Obamacare” in its entirety.
But at least one GOP state attorney general is among those fighting back. According to the Cincinnati Enquirer, Ohio’s Dave Yost is advising a federal court to throw out the lawsuit:
Yost said in an interview he agrees that the individual mandate to buy health insurance is unconstitutional but disagrees that the rest of the law is also therefore invalid.
Yost plans to file a friend-of the-court brief in the 5th Circuit Court of Appeal. The brief will argue the individual mandate can be removed from the law without eliminating protections for pre-existing conditions, insurance caps and other parts of the law. About 1.9 million non-elderly Ohioans have pre-existing conditions, according to the Kaiser Family Foundation.
The lawsuit is rooted in the GOP tax bill passed at the end of 2017, which among other things eliminated the ACA’s individual mandate, and in the Supreme Court’s 2012 decision in National Federation of Independent Businesses v. Sebelius, which said the mandate was constitutional under Congress’ power to tax. Since the mandate no longer exists, the lawsuit argues, it is no longer a tax, and therefore the entire law — pre-existing conditions, community rating, insurance exchanges, essential benefits, tax credits, Medicaid expansion, Medicare reforms, all of it — must be struck down.
- The lawsuit is broadly considered ridiculous even by conservative experts — most of the law’s provisions have nothing to do with the individual mandate, and when Congress eliminated the mandate while keeping everything else, they were clearly establishing the mandate is severable from the rest of the law. Nevertheless, the lawsuit found sympathetic ears in Judge Reed O’Connor, an extremely partisan federal judge in Fort Worth with ties to Sen. John Cornyn (R-TX). O’Connor ruled in favor of the lawsuit, but his ruling is on hold and under review by the Fifth Circuit — and Trump’s DOJ is trying to persuade them to uphold it.
- 20 GOP state attorneys general, led by Texas AG Ken Paxton, initially brought the lawsuit, but Ohio was never among them. Despite being firmly in Republican control for nearly a decade, the state has benefited hugely from the ACA — it adopted the Medicaid expansion, and relies heavily on ACA programs to keep rural hospitals afloat and combat the opioid crisis. Losing all these programs would be a disaster for Ohio, and Republicans there know it.
- In addition to Yost’s brief, over a dozen Democratic state attorneys general led by California’s Xavier Becerra are mounting a defense of the ACA.