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Texas AG 'optimistic' that Supreme Court will overturn ACA with Justice Barrett on bench

Kristin Myers
·4 min read

The Supreme Court heard arguments this week on the Affordable Care Act (ACA) as states’ attorneys general, led by Texas, fight to have the landmark health care bill overturned. With the appointment of Amy Coney Barrett to the bench, Democrats have stressed that the legislation was in danger of being overturned.

Texas Attorney General Ken Paxton said he was “optimistic” about the success of the case with Justice Barrett on the bench.

“We think she is a textualist, somebody that will actually read the text of the statute, follow the Constitution as the framers intended it, and that's always good for us,” he told Yahoo Finance. “We like judges that follow the law, who aren’t there to make up law or try to fix something that Congress should have done or shouldn't have done.”

He added it was not the job of judges to create policy, but rather the role of legislators. And on the policy of health care, he said, states would do a better job of creating health care plans.

“Why not let the states make their own decisions and provide resources and opportunities that are individualized, as opposed to one-size-fits-all from the federal government?” Paxton asked. “We think our state can do it better, and that's what we argued to the U.S. Supreme Court.”

The Affordable Care Act, known colloquially as Obamacare was enacted in 2010, and since then, Congress has made more than 60 attempts to strike the law down. The latest Supreme Court case hinges upon the individual mandate — the provision of Obamacare that requires all Americans have health insurance, or face a tax penalty. The Tax Cuts and Jobs Act made that financial penalty $0, effectively nullifying the provision. It is the individual mandate that states argue is unconstitutional; and what’s more the states argue, if the individual mandate is unconstitutional, so is the rest of the law.

It’s a legal argument that many have said is weak, but Paxton said the state has “won at every level with people telling us we had a weak argument” and he called the criticisms “disingenuous,” given the success.

“It's going to be a close vote and it's going to come down to the interpretation of whether legislative intent and what the text of the statute actually says about severability as to how these justices rule,” ” Paxton said. “We think the legislative history and the actual text favor us.”

Justices John Roberts and Brent Kavanaugh, both conservative members of the bench, seemed to question this view, arguing that the mandate could be “severed” from the Act, leaving the rest of the law standing during oral arguments on Tuesday.

“It's always difficult to tell which way they're going to rule,” Paxton said in response to the comments. “I've been surprised before. I think a lot of us have been surprised before.”

FILE - State Attorney General Ken Paxton waits on the flight line for the arrival of Vice President Mike Pence at Love Field in Dallas, Sunday, June 28, 2020. Several top deputies of Texas’ attorney general have accused him of crimes including bribery and abuse of office in an internal letter saying they’ve reported the actions to law enforcement. In a brief letter, seven senior lawyers wrote that they reported Paxton for potentially breaking the law “in his official capacity as the current Attorney General of Texas." Paxton’s defense attorney in the securities case, declined to comment on the new allegations Sunday, Oct. 4, 2020. Paxton pleaded not guilty in that case but it is not clear whether the new accusations are related. (AP Photo/Tony Gutierrez)
Texas Attorney General Ken Paxton waits on the flight line for the arrival of Vice President Mike Pence at Love Field in Dallas, Sunday. (AP Photo/Tony Gutierrez)

He added that he believes that the Supreme Court will strike down the individual mandate, but questions remain whether they will strike the rest of the ACA down with it.

“Our argument is hey, look, Congress said in the statute and in the legislative history that fundamental to the purpose of this statute was the individual mandate, this idea that you were forced to buy insurance by the government. And with that gone, our argument is Congress had no purpose in this — [to leave] the rest of the legislation standing,” Paxton said.

Paxton acknowledged that Supreme Court decisions typically had immediate effect, but explained that they had asked the court to delay implementation of their decision until after a health care replacement was crafted.

Neither Republicans, nor the state of Texas have come up with a replacement plan.

“We want the opportunity to come back and do the best we can for our people, and we think we could do a better job providing more choices,” he said

According to a September study from Pew Research, an increasing number of Americans favor a single payer health care plan — or universal health care. More than 60% say the government is responsible for health care coverage for all, while more than a third of Republicans advocate for a government-led health care plan for Americans.

Kristin Myers is a reporter at Yahoo Finance. Follow her on Twitter.

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