States hedge their bets as they sue to end Obamacare
One day after 20 states including Wisconsin sued to eliminate the Affordable Care Act, GOP Gov. Scott Walker visited two hospitals to hold ceremonial signings of a measure to spur a 1332 waiver application to stabilize the state's individual market.
It's a tale of of two tactical plans. While Wisconsin and other Republican-majority states have to work the political arena and appeal to conservatives to shore up their exchanges, they're also using the courts to dismantle the law.
But legal experts say the litigation's success is improbable because the states may not have standing to challenge the remainder of the ACA.
But the tax penalty isn't enforceable since the GOP tax bill from late 2017 zeroed out the mandate starting in 2019, according to legal scholar Timothy Jost. That fact doesn't give the states standing since Congress refused to repeal the rest of the statute and the request is "jaw-dropping," he said.
"Going to a judge and saying you need to do what Congress did not do — that is not what judges do," said Jost, who noted the states are essentially relitigating the case in a way that is likely "not going anywhere."
"They obviously don't know what they're talking about, that they want to repeal the entire statute," Jost said. "Does that mean the donut hole comes back for Medicare? Do 12 to 14 million people lose Medicaid coverage? Do 10 million people lose exchange coverage?"
Chris Condeluci, a health law consultant who worked as a GOP aide for the Senate Finance Committee while the ACA was written, said the step makes sense from a messaging perspective.
"I think it's a messaging case," Condeluci said. "It's a logical step that those who oppose the ACA would take."
Condeluci also pointed to past critics claims that U.S. Supreme Court Chief Justice John Roberts used the tax penalty argument in 2012 to avoid nixing the ACA, and noted the Supreme Court would likely use a separate provision to uphold the health law should they need to call up the case again.
Walker is one example of a plaintiff who is making this step while also working on his own stabilization plans.
"Gov. Walker did authorize the lawsuit because it questions the constitutionality of Obamacare," said Amy Hasenberg, a spokesperson for Walker.
However, Hasenberg continued, "ACA is the law and as long as it remains, Wisconsin will work within the confines of that law to help Wisconsin families. This is why Governor Walker created his Health Care Stability Plan which will help bring premiums down for those on the individual marketplace, and create stability for seniors and those with preexisting conditions."
Hasenberg also pointed out that should the plan would ensure coverage provisions for Wisconsin should the ACA ever be repealed.
Other plaintiffs include states that have expanded Medicaid such as Florida, Arizona and Louisiana — whose Democratic Gov. Jon Bel Edwards is an outspoken advocate for the ACA.
Several of the plaintiff states, including Indiana, Arkansas, Maine and Utah are working with the CMS on Medicaid waivers for work requirements that would ramp back Medicaid coverage in their states but not eliminate it entirely.
HHS Secretary Alex Azar, who is the defendant in the case because of his position at the helm of the department, has not yet released a statement about the case.
"HHS legal counsel and the Department of Justice will review the lawsuit and evaluate its arguments," an HHS spokesperson told Modern Healthcare on Tuesday.
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