From those wonderful folks who brought you ACA nullification....
Does the rogue's gallery of state attorneys general asking the Supreme Court to end American democracy by overturning presidential election results in Georgia, Michigan, Wisconsin and Pennsylvania look familiar? Here are the states that joined an amicus brief in support of the suit filed by indicted Texas attorney general Ken Paxton alleging that all of those states' certified election results are the product of massive but utterly undocumented fraud:
All of these states except Oklahoma and Montana* are plaintiffs in California v. Texas, the suit arguing that when the Republican Congress zeroed out the ACA individual mandate penalty in December 2017, they rendered the entire sprawling law unconstitutional, either by accident or by stealth.
The suit seeking to invalidate the electoral votes of four battleground states is beneath contempt, retailing the unsupported fantasy allegations and fraudulent statistical analysis that more than 50 state and federal courts to date have rejected. These false claims are advanced at the behest of a president who has told over 20,000 documented lies in office and alleged that he was cheated in virtually every contest he's ever been engaged in.
That these 18 state AGs would sign onto this farcical fraud spawned by their corrupt colleague in Texas, which if upheld would negate any possibility of free and fair elections in the U.S. going forward, casts retrospective light on the near-equal fraudulence of the suit seeking to nullify the ACA.
The suit's ridiculous premise is based on the Supreme Court’s 2012 ruling that the ACA’s “individual mandate” to purchase insurance exceeded Congress’s powers under the commerce clause -- but is constitutional as an exercise of Congress’s taxing power. In 2017 the Republican Congress zeroed out the penalty for going uninsured but left a zero-penalty mandate in place. The Texas plaintiffs claim that with no penalty, the mandate is no longer a "tax" and is therefore unconstitutional -- and that the entire law has to fall with the unconstitutional mandate. In effect, they, argue, the Republican Congress rendered the ACA unconstitutional by accident or stealth.
The Trump administration has argued that the mandate is "inseverable" from the rest of the ACA. Never mind that the zeroing out of the penalty as of 2019 has had little impact on ACA marketplace enrollment, which the mandate was designed to bolster. While the findings section of the Affordable Care Act text does assert that the mandate is "essential to creating effective health insurance markets," the Republican Congress that zeroed out the mandate penalty plainly disagreed, as it took no action to defund or otherwise alter the markets in which the mandate operates. Moreover, the zeroing out of the mandate penalty in 2019 has had little apparent effect on the ACA marketplace or U.S. health insurance generally.
In oral argument, Supreme Court justices Roberts and Kavanaugh voiced reassuring skepticism regarding the notion that the mandate is inseverable from the rest of the ACA. Roberts said, "Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question." Um, yes. Almost as compelling as Republican election officials and legislatures certifying their states' presidential vote after multiple audits.
To step back, the suit seizes on fraudulent technicalities -- a constitutional penalty becomes unconstitutional when its value is zero, the mandate is inseverable despite two years' experience proving otherwise because a 2010 finding posited its essentiality -- in an effort to strip subsidized health insurance from about 25 million people (10 million subsidized in the marketplace, more than 15 million via the ACA Medicaid expansion) in the midst of a deadly pandemic.
That's about what you'd expect from people in positions of power who'd sell out American democracy at the behest of Donald Trump. But it's only in light of the later effort that the full fraudulence of their states' prior assault on a duly enacted law comes into full focus.
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* Montana filed a brief arguing that the mandate is unconstitutional but severable.