The Justice Department announced last week that it would not defend the current lawsuit against the Affordable Care Act (ACA), also known as Obamacare.  (here) Republican attorneys general from 20 states have sued the federal government. Their case is based on the fact that the major Congressional tax reform bill of 2017 eliminated the “tax” on Americans who do not own health insurance under the ACA. Without the penalty, the AGs claim that the entire law is unconstitutional.

Remember in 2012 when the U.S. Supreme Court ruled in a contorted five to four judgment that the penalty for not owning health insurance was a “tax.” Since the Constitution gives Congress the ability to tax Americans, the justices found the entire law was constitutional. The AG lawsuit uses the same legal logic to claim the ACA is now unconstitutional since the tax was eliminated by last year’s federal tax reform legislation.

Since the Justice Department’s announcement, the media has focused on the repeal of certain specifics of the law, including the elimination of the pre-existing condition mandate. (here) Eliminating the Obamacare mandates, however, would give the vast majority of individuals and small groups more health insurance choices at less cost.

Lost in this media attention is the fact that the ACA has no severability clause. In other words, if any part of the law is found to be unconstitutional, the entire law becomes unconstitutional and void.

Medicaid, for example, has been expanded a number of times since it began in 1965. The ACA specifically further expands the entitlement to any able-bodied person ages 18 to 64 who earns less than 138 percent of the federal poverty level. This Medicaid expansion would theoretically be eliminated, saving taxpayers billions of dollars a year and offering low-income people better choices for health insurance.

The Republican AG’s lawsuit must go through the courts and undoubtedly be heard by the U.S. Supreme Court. Because of the Court’s 2012 ruling, it hopefully would be very difficult for the justices to now claim the ACA is constitutional without the individual mandate “tax.”

There is no question that Obamacare has helped certain Americans. However, it has not come close to the supporters’ promises of universal health insurance coverage, bending down the ever-rising cost curve of health care, allowing people to keep their doctors, and saving every family $2,500 per year on health insurance premiums.

It is time to declare the ACA unworkable (and unconstitutional) and start over with free market ideas that put patients in charge of their own health care, not government bureaucrats. (here)