Breaking: @TXAG @KenPaxtonTX and @WisDOJ file 20-state lawsuit challenging constitutionality of ACA's individual mandate based on tax-reform bill texasattorneygeneral.gov/news/releases/… 
20 states seek to hold Roberts to his saving construction: "Because this recent amendment renders legally impossible #SCOTUS prior savings construction of ACA's core provision—the individual mandate—the Court should hold that the ACA is unlawful and enjoin its operation."
COUNT ONE: "Declaratory Judgment That the Individual Mandate of the ACA Exceeds Congress’s Article I Constitutional Enumerated Powers"
Critically: "Plaintiffs are entitled to a permanent injunction against Defendants from implementing, regulating, or otherwise enforcing any part of the ACA because its requirements are unlawful and not severable from the unconstitutional individual mandate."
Key argument: the Chief Justice's saving construction read the penalty as a tax only so long as it raised. It no longer raises revenue, so it can't be saved. #SCOTUS
Critically: "Plaintiffs are entitled to a permanent injunction against Defendants from implementing, regulating, or otherwise enforcing any part of the ACA because its requirements are unlawful and not severable from the unconstitutional individual mandate."
Key argument: the Chief Justice's saving construction read the penalty as a tax only so long as it raised. It no longer raises revenue, so it can't be saved. #SCOTUS
Once again, Republican AGs have been ready to sue the Trump Administration. DOJ is getting hit from both the right and left.
Also, in case you are thinking that the mandate could be severed, the Obama administration argued before DOJ that the mandate could not be severed. Four Justices agreed with that position. #SCOTUS would have also to invalidate community-rating and guaranteed-issue.
DOJ will likely oppose on standing and other justiciability grounds. But does @jeffsessions submit a brief arguing that Obamacare is constitutional!? This case puts the Trump Administration in a really, really tough bind.
In any event, my Obamacare book trilogy proceeds apace. #Undone
The penalty expires next yr. But the mandate remains.
A critical issue here is whether the mandate and the penalty are connected, or are separate entities. The joint dissent held that they separate. CJ Roberts agreed, but under the saving construction, held that there was no mandate, but merely a tax on going uninsured.
If the penalty can no longer be read as a tax, Plaintiffs will argue that the Chief now agrees with the joint dissent on the mandate and the penalty being separate. Even though the penalty is set to $0, the mandate remains.
This discussion from oral arguments in NFIB between Justice Kagan and now-Judge Katsas illustrates the challengers' position: you can be subject to the mandate, but not subject to the penalty. They are different legal requirements. oyez.org/cases/2011/11-… #SCOTUS
ACA distinguishes those who are exempt from the mandate, 26 USC 5000A(d), and those who are exempt from the penalty 26 USC 5000A(e). Incarcerated people are exempt from mandate. People w/ financial hardship are subject to mandate, but not penalty law.cornell.edu/uscode/text/26…
Congress did repeal the penalty by statute. At this point, the mandate exists only by virtue of the Chief's saving construction. That judicial-rewriting of the law is what this suit aims to challenge.
@chrislhayes
@chrislhayes
New @Law360 piece on challenge to #ACA mandate (not the penalty) w/ quotes from me, @jadler1969, @IlyaSomin, @ishapiro, @nhuberfeld1, and Abbe Gluck law360.com/benefits/artic…
