Attorney General Leslie Rutledge‘s office issued a press release boasting that she is part of a 20-state coalition of red-state attorneys general requesting a preliminary injunction to shut down the Affordable Care Act, thereby stripping health coverage from hundreds of thousands of Arkansans and millions of Americans.
Rutledge proudly joined a lawsuit filed in February that argues that the health care law is now unconstitutional because the GOP Congress nixed the individual mandate as part of the recently passed tax cut.
If a court actually enjoined the entire health care law, the health care marketplaces would be thrown into chaos and millions of Americans would have coverage and access to care threatened. If the entire law was actually thrown out on the basis of this lawsuit, millions of Americans would lose Medicaid coverage, millions more would lose subsidies they depend on for affordable insurance, millions of people with pre-exisiting conditions would again face price discrimination from insurance companies, the exchanges where millions of people currently have health plans would disappear, the Medicare donut hole would be re-opened, and millions of young people would lose coverage they’re now getting on their parents’ plans. In Arkansas, the uninsured rate would likely more than double overnight. Billions in federal spending on health care in the state would stop. But Republicans would be able to say they beat Obamacare. There can be no greater prize for Rutledge.
Rutledge doesn’t mention any of these issues in her press release, instead offering some slapdash talking points: “In its current unlawful form, Obamacare still imposes rising costs and transfers an enormous amount of regulatory power to the federal government.”
In their lawsuit, Rutledge and her pals offer the following convoluted argument: The Supreme Court previously ruled that the individual mandate — the requirement that people sign up for health insurance or face a financial penalty — was constitutionally permissible as a tax. Congress didn’t technically eliminate the mandate itself in the recent tax cut bill, it eliminated the tax penalty for failure to comply with the mandate. It reduced the fine, in other words, from $695 to $0. By zeroing out the tax penalty, then, you’re left with a mandate without an accompanying use of Congress’s taxing power. That’s unconstitutional, they argue, using the Supreme Court’s previous logic that the mandate was allowable specifically as a tax.
Okay, but this all seems like a minor point since the mandate, for all practical purposes, has been eliminated in any case. The next leap they make, however, is that because the mandate has been described as key to the functioning of the ACA in previous Supreme Court opinions and in the original ACA legislation, nixing the mandate means that the entire law must be thrown out. “Once the heart of the ACA—the individual mandate—is declared unconstitutional, the remainder of the ACA must also fall,” the lawsuit argues.
This is a pretty flimsy argument (you can read some discussion from legal experts over at Vox). Congress just passed a law that eliminated the mandate while keeping the rest of the ACA intact, so if the Court is interested in the intent of lawmakers, it’s hard to conclude that the ACA is rendered utterly unworkable (an “irrational regime”) without the mandate. Even conservative legal commenters seem skeptical that this has legs. ”They are asking the court to evaluate the current law on the basis of what the law used to be,” Jonathan Adler, a law professor who was a key architect of a previous legal challenge to the law, told Vox. “That whole analysis just doesn’t apply or work anymore.”
That said, Obamacare lawsuits are hard to predict, the attorneys general filed in a very friendly district court in Texas, and we’ll see what happens.
Rutledge seems to be indifferent to the fact that this lawsuit targeting every single provision in the law would wreak havoc on the state, throw hospitals and insurance markets into a tailspin, reinstitute price discrimination based on pre-existing conditions, and strip coverage from hundreds of thousands of Arkansans. I suppose she’s more interested in fulfilling her campaign promise to fight Obama from Little Rock, even after he’s long gone from the White House. She also promised to to wake up every morning brainstorming ideas to sue the federal government. So here we are.
Who has time to worry about health care for a few hundred thousand of your citizens when there’s a chance to grandstand against Obamacare? For some Republicans, endlessly re-fighting their sad war against Obamacare is the only thing that makes sense in these confusing times.