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From Health Law Daily, February 27, 2018

20 states seek repeal of entire ‘unconstitutional and irrational’ ACA

By Sheila Lynch-Afryl, J.D., M.A.

Twenty states filed a lawsuit against the federal government challenging the constitutionality of what remains of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) after the Tax Cuts and Jobs Act of 2017 (P.L. 115-97) eliminated the individual mandate’s tax penalty only. With no remaining legitimate basis for the ACA, said the states in their complaint, the remainder of the law, which "forces an unconstitutional and irrational regime" on the states and their citizens, must also fall.

Interpreting various majority and dissenting opinions within National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (see Court upholds ACA, but modifies Medicaid expansion, July 2, 2012), the states argued that the Supreme Court narrowly upheld the core provision of the ACA—the individual mandate, created by ACA Sec. 1501—as a tax, but also ruled that without the tax penalty, the mandate that individuals purchase health insurance was an unconstitutional exercise of federal power. Sec. 11081 of the Tax Cuts and Jobs Act of 2017 struck the penalty effective January 1, 2019, leaving the mandate in place. Because the ACA is not severable, the states argue, and "Since the Supreme Court has already held that Congress has no authority to impose such a mandate on Americans, absent invoking its taxing authority, the ACA is now unconstitutional."

The states claim that the ACA has harmed them in a variety of ways, including as sovereigns and large employers. The complaint seeks declaratory judgments that (1) the individual mandate exceeds Congress’s enumerated powers; (2) the ACA violates the Due Process Clause and the Tenth Amendment; and (3) agency rules promulgated pursuant to the ACA violate the Administrative Procedure Act. The suit also seeks an injunction prohibiting federal officials from implementing or enforcing the ACA.

Texas and Wisconsin spearheaded the complaint and were joined by Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.

The case, which is captioned Texas v. U.S., was filed in the Northern District of Texas and assigned Case No. 4:18-cv-00167-O.

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