Texas Leads Novel Legal Approach to Taking Down Obamacare

Obamacare opponents are returning to court to seek a judicial end to the national health care law, this time to exploit the same rationale that led the Supreme Court to uphold it in the first place.

Texas, Wisconsin and 18 other states this week filed a federal lawsuit in Texas arguing that Congress made the Affordable Care Act unconstitutional when it eliminated the penalty imposed on people who do not have health insurance. Designed to deter free riders, the provision long has been one of the most unpopular parts of former President Barack Obama’s signature legislative achievement.

Congress eliminated the penalty as part of the tax reform approved in December.

Opponents challenging the constitutionality of Obamacare initially argued that Congress exceeded its authority by requiring citizens to purchase a private product. But Chief Justice John Roberts stunned conservatives in 2012 by joining the court’s four liberal justices in determining that it was “fairly possible” to read the mandate and the penalty together as a tax.

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With that penalty now set at zero but the mandate still technically on the books, the attorneys general argue, there can be no plausible argument that the unconstitutional provision actually is a tax.

“Texans have known all along that Obamacare is unlawful, and a divided Supreme Court’s approval rested solely on the flimsy support of Congress’ authority to tax. Congress has now kicked that flimsy support from beneath the law,” Texas Attorney General Ken Paxton (pictured above) said in a statement.

“The U.S. Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional. With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all,” Paxton said.

The lawsuit argues that if the mandate — even a toothless one — is unconstitutional, then the entire law is as well.

“In fact, Congress stated in the legislative text that the ACA does not function without the individual mandate,” the complaint states.

It is a clever ploy to accomplish what other legal challenges and legislative attempts so far have failed to do. Josh Blackman, who wrote “Unraveled: Obamacare, Religious Liberty, and Executive Power,” said he anticipated the maneuver.

“The second the penalty was zeroed out, I was wondering when someone would do this,” he told LifeZette.

Just because an idea is clever does not mean it will be successful, however. Blackman, a professor at South Texas College of Law Houston, suggested the suit probably faces long odds.

“The fact is, the court has upheld Obamacare twice,” he said. “It’s hard to see the court not upholding it a third time.”

The lawsuit has captured the imagination of conservatives still licking their wounds from past legislative defeats.

“Who knew tax reform was good for more than economic growth and keeping more money in our pockets?” FreedomWorks President Adam Brandon said in a statement. “Apparently Republican attorneys general knew! The tax is the only way the Supreme Court could justify the coercion of the individual mandate, and that’s gone now.”

The chief justice’s majority opinion in the 2012 case relied on a doctrine of law that holds that a statute should be saved if it can be interpreted in a constitutional way. Hence, the court’s declaration that the mandate was not a requirement that people buy insurance — which a majority of the justices found Congress had not authority to impose — but a tax.

“That only works if revenue is being raised,” Blackman said.

Thanks to the Republican tax overhaul, the federal government starting next year will not collect a dime from the mandate. It could put Roberts in an uncomfortable position.

“I think they’re trying to make Chief Justice Roberts own his opinion and maybe get lucky,” Blackman said.

PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.