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Democrat AGs: Obamacare mandate still exists, even at $0

August 30, 2018

To understand the blue-state case against the latest Obamacare lawsuit, California Attorney General Xavier Becerra wants you to think of a bank account even if you take out all your money, the account is still there.

“You could replenish that checking account the next day,” he told reporters Thursday.

Democratic attorneys general plan to argue the same is true of Obamacare’s “individual mandate” penalty for shirking health insurance, pushing back against state Republicans who say the GOP’s decision to zero out the penalty means Congress is no longer using the taxing authority the Supreme Court relied on to uphold the health law in 2012, so the rest of the program is invalid.

Democratic attorneys general say the mandate tax is still on the books, even if it’s set at $0, and that a future Congress easily could raise the amount.

“A tax doesn’t have to generate revenue in order to be a tax,” North Carolina Attorney General Josh Stein said in a conference call hosted by Protect Our Care, a pro-Obamacare group.

The attorneys tested their analogy in the court of public opinion ahead of a Wednesday showdown in Texas, where they’ll ask a real court to spurn GOP attorneys general seeking a preliminary injunction that blocks the government from implementing the Affordable Care Act.

The legal challenge filed by 20 red states is spilling into the midterm campaign debate, since it seeks to strike popular parts of Obamacare that require insurers to cover people with pre-existing conditions and charge them the same as healthy people.

Mr. Becerra and other Democratic attorneys general will be the only ones defending President Obama’s program in court, since the Trump administration has decided to stay out of the lawsuit.

“The federal government went AWOL,” Mr. Becerra said.

Democratic attorneys general say even if the court decides the individual mandate is no longer a tax, it shouldn’t strike other parts of Obamacare.

They will argue the rest of the law is severable from the mandate because Congress decided as much in passing the GOP tax-cut bill that zeroed out the mandate, starting in 2019.

Lawmakers who crafted and approved the tax bill didn’t touch other parts of Obamacare, and Republicans who pressed to kill the mandate didn’t portray it as the start of a domino effect that would topple the program.

Mr. Becerra said he hopes the court will suggest a redo on the tax-cut bill as a potential remedy, if one is needed, saying the burden is on GOP lawmakers to clean up after fellow Republicans who are banking on the courts to kill off popular parts of Obamacare.

“This is a self-inflicted wound,” he said.

State GOP plaintiffs pushing the lawsuit don’t see it that way. They said their lawsuit will wipe the slate clean and prod Congress to approve a new, market-oriented system that’s more affordable than Obamacare, after GOP repeal attempts sputtered out of gas in 2017.

Two of the plaintiffs West Virginia Attorney General Patrick Morrisey and Missouri Attorney General Josh Hawley are gunning for Senate seats held by Democrats this fall, saying their votes would help Senate Republicans push an Obamacare replacement across the finish line.

Ten Senate Republicans are skittish about their lawsuit, however, and filed a bill that would enshrine Obamacare’s protections for sicker Americans in a health-privacy law from the 1990s. They want to stave off political finger-pointing and blowback from constituents with pre-existing conditions, if the courts gut the Democrats’ program.

Mr. Becerra, meanwhile, said he will argue strenuously against the plaintiffs’ request for an injunction next week, citing the potential fallout of stopping Obamacare in its tracks.

“It would throw the entire system into chaos,” he said.

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