Ken Cuccinelli: Settling for the End of Obamacare


State attorneys general from West Virginia to Texas have filed a lawsuit correctly arguing that Obamacare is unconstitutional. President Donald Trump should agree and order the Department of Justice to settle both cases in order to restore the Constitution.

When the Supreme Court upheld Obamacare by a 5-4 vote in June of 2012, it did so by relying on the so-called “tax penalty” applied to anyone who failed to buy government-approved health insurance. Chief Justice Roberts said the tax penalty allowed Obamacare to be considered constitutional as an exercise of Congress’ constitutional taxing power.

Of the many rulings in many courts across America on Obamacare up to that time, not a single court anywhere upheld Obamacare as an exercise of Congress’ taxing power — that is, until the Supreme Court itself.

That ruling was in the face of former President Barack Obama’s infamous declaration on national television to George Stephanopoulos that Obamacare was “absolutely not a tax increase.”

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Fast forward to the tax reform bill of December 2017. That bill effectively repealed the so-called tax penalty on the individual mandate (as of Jan. 1, 2019), thus eliminating the exercise of the taxing power under the 2012 Obamacare ruling. The only constitutional “hook” that saved Obamacare in 2012 will thus be gone as of Jan. 1, 2019.

Eighteen attorneys general and two governors have sued under the 2012 Obamacare ruling to have Obamacare declared unconstitutional in the absence of the tax penalty, and it’s a logical layup!

Trump has noted many times that Obamacare was unconstitutional and that it is doing immense damage to health care in America. He now has the power to bypass Congress and end Obamacare by agreeing with the 20 states that have sued, and settle their current Obamacare lawsuit by conceding that Obamacare is unconstitutional.

If he did this soon, it would even give Congress seven months to make changes to our health care system before the new end date for Obamacare: Jan. 1, 2019.

Do you think President Trump should put an end to Obamacare?

What would happen if the Trump administration attempted to settle the Obamacare case?

Two things would happen: First, other parties that want to keep Obamacare would attempt to intervene in those cases to argue against settling. It is likely the courts would allow some interested party to intervene to at least make the argument against settlement.

Second, the court would decide directly whether the Constitution was being violated, and thus whether the settlement was appropriate. At that stage, it will be critically helpful to have the U.S. government (read: Trump administration) standing with the state attorneys general to end Obamacare, as the courts give significant deference to the position of the federal government in such a case.

Assuming the settlements were approved, they would undoubtedly be appealed. But the good news for constitutionalists is that earlier cases have paved the way to end both Obamacare and DACA — and both settlements should hold up all the way through the Supreme Court.

Settling both cases would be consistent with Trump’s own campaign promises, but these are big steps. The big question now is will Trump act to end Obamacare and DACA without Congress?

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The organization that I lead — the Senate Conservatives Fund — has been fighting Obamacare since its inception, and we have been repeatedly disappointed in congressional Republicans’ failure to keep their promise to repeal Obamacare. Now, the president and state attorneys general can end Obamacare together.

Ken Cuccinelli was the first State Attorney General to sue against Obamacare, and the first to have it held unconstitutional in district court. He now leads the Senate Conservatives Fund in efforts to elect anti-establishment conservatives to the U.S. Senate. Click here to find the Senate Conservatives Fund on Facebook.

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