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Professor Robert Field Critiques Lawsuit Against Affordable Care Act on Radio Times and in Inquirer Op-Ed

Professor Robert Field

June 19, 2018

A lawsuit against the Affordable Care Act by attorneys general from GOP states amounts to frivolous nonsense, Professor Robert Field said in an op-ed essay in the Philadelphia Inquirer on June 12.

The suit, filed by 20 Republican attorneys general, claims that the ACA was rendered unconstitutional when Congress decided to eliminate the financial penalty that the ACA imposed on those who failed to acquire health insurance.

“Can a law be unconstitutional if it doesn’t exist,” Field asked. “It doesn’t matter whether you call the mandate a tax or anything else, as of 2019, it will no longer be in force. By what stretch of logic can a law that that is not in effect be considered unconstitutional?”

The argument makes even less sense, Field argued, in light of the ability of Congress to re-impose the tax in the future.

"If Congress were to resurrect the penalty at some point," Field asked, "would the mandate become constitutional again? Or is it only unconstitutional when it isn't in effect?"

Field further discussed the lawsuit during an appearance on WHYY’s Radio Times, noting that it’s simply the latest in a series of GOP-led efforts to undermine President Obama’s signature reform initiative.

“It’s part of this game of whac-A-mole,” Field said, noting that efforts by the Republican majority in Congress to repeal the law failed.

Much of the ACA is still in place, Field added, noting that the Medicaid expansion that made insurance available to 15 to 20 million Americans is—so far—still in place, changes in reimbursement to doctors and hospitals have remained intact, young adults may stay on their parents’ policies and many people are continuing to sign up for Obamacare.

Whether signups will continue at the same pace remains unclear, Field said, adding that the Trump administration’s decision to side with the GOP attorneys general and not to defend the law raises unknowns about the future.

Field said the lawsuit could raise political blowback for Republicans, if they succeed at overturning the law, which contains popular provisions like guaranteeing coverage for pre-existing conditions.