GOP lawmakers ready to move on from Obamacare fight, but some attorneys general haven’t given up

By | June 18, 2021

After the latest Supreme Court ruling upholding the Affordable Care Act, Republican lawmakers are ready to move on from the Obamacare fight even as their party’s state attorneys general vow to fight on.


Although the Supreme Court ruled against the latest attempt by 18 Republican-led states to take down the healthcare law Thursday, Texas Attorney General Ken Paxton, who spearheaded the lawsuit, later stated he is not done fighting it.

“As your Attorney General, I will continue to fight this law — in fact, I have only just begun,” Paxton tweeted. “Obamacare was sold on a lie to the American people. Its crown jewel — the individual mandate — was unconstitutional when it was enacted and it is still unconstitutional.”

Indiana Attorney General Todd Rokita tweeted, “Once again, SCOTUS has declined to weigh in on the merits of this insidious government takeover of our healthcare, otherwise known as Obamacare, which has drastically driven up cost by squelching competition & choice. We’ll continue to push back against this unconstitutional law.”

Republicans have faced two other high-court disappointments since Obamacare’s passage in 2010.

The first happened in 2012 when the court ruled in favor of then-Health and Human Services Secretary Kathleen Sebelius over the National Federation of Independent Business, concluding the law’s individual mandate provision was constitutional and could be considered a valid tax. The second occurred in 2015 when the court ruled 6-3 to save Obamacare tax subsidies.

By 2017, then-President Donald Trump captured a small victory for Republicans after he signed the Tax Cuts and Jobs Act, which included a provision that lifted the tax penalty for failing to get health insurance, lowering it from $ 695 to zero.

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Yet despite Trump’s efforts to fulfill a 2016 campaign promise to “repeal and replace” Obamacare, three members of his own party, Sens. Lisa Murkowski of Alaska, Susan Collins of Maine, and John McCain of Arizona, helped Democrats torpedo the 2017 Health Care Freedom Act, which would have banned health insurers from accepting federal subsidies under Obamacare.

During the latest challenge of the act at the Supreme Court, litigants argued that the 2017 tax reform bill’s change in the individual mandate’s penalty to $ 0 meant the mandate was no longer constitutional, as it could not be considered a tax now.

Without that tax, the law’s other measures, such as the Medicaid expansion and coverage for preexisting conditions, must also be rejected by the court as well. It ruled that the attorneys general lacked standing.

“We have this amazing flip-flop from when they first came before the court in the NFIB v. Sebelius, and this is like what Alito said. They came with these arguments, talking about the individual mandate as it kind of being the part of the plane,” Matthew Forys, chief of staff at the Landmark Legal Foundation, told the Washington Examiner. “If you take it out, the plane is gonna crash. Well, it’s been taken out and the plane didn’t crash. So, where are we now?”

He added, “We’re left, in my opinion, with an unconstitutional command. But since there are no consequences for failing to buy insurance, there’s no tax penalty now. It’s going to be hard for, for someone to have standing to make a claim.”

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Republican lawmakers, however, have their eyes on a new healthcare fight: expansions of the law or Medicare.

“I think three times the Supreme Court’s upheld the Affordable Care Act, and I think we need to move on,” Sen. John Cornyn, a Texas Republican, told Politico.

Emboldened by the Supreme Court decision, President Joe Biden plans to expand the Affordable Care Act. For Republicans on Capitol Hill, “repeal and replace” is out and preventing “Medicare for all,” a policy first made popular among progressives by Senate Budget Committee Chairman Bernie Sanders, is in.


Biden previously proposed a government-run public option during the campaign, but the left flank of his party still touts Medicare for All. It is already reportedly being discussed by Senate Health Committee Chairwoman Patty Murray, a Washington Democrat, and House Energy and Commerce Chairman Frank Pallone, a New Jersey Democrat.