COLUMBUS — Ohio Attorney General Dave Yost today announced his intent to file an amicus brief in the Fifth Circuit Court of Appeals supporting the reversal of a district court decision striking down the entire Affordable Care Act (ACA).
“I do not like judicial activism in either its liberal or conservative flavors,” Yost said. “Chief Justice Marshall was right when he said it is the province of the courts to say what the law is — but it is also true that the writing of the law belongs to Congress.”
Ohio will file a separate amicus brief in the Fifth Circuit Court of Appeals arguing the unconstitutional “individual mandate” can be removed from the ACA without throwing out its protections for pre-existing conditions. Lawyers call this “severability.”
A group of states started this lawsuit, arguing that when Congress reduced the penalty to zero for violating the individual mandate, the mandate became unconstitutional and the remainder of the ACA had to fall with it. The trial court was required by precedent to guess at Congress’s intent, and at whether it would have passed the rest of the law if it knew the individual mandate was unconstitutional.
Guessing at the intentions of the 535 individual members of Congress requires “magical thinking,” Yost said. In its brief, Ohio will argue that the Court should abandon this test in favor of a straightforward textual analysis.
Even under existing precedent, however, the trial court got it wrong, according to the attorney general. When Congress acted in 2017 to reduce the penalty for violating the individual mandate to zero, it expressly left in place other provisions in law, including protections for individuals with preexisting conditions. Congress’s intent need not be guessed at, since we have an actual vote.
“I agree that the individual mandate is unconstitutional, but I strongly disagree that it justifies throwing out all of ACA and abandoning millions of Ohioans,” Yost said. “The impact to Ohioans is far too great to let judicial activism jeopardize our citizens’ health and well-being.”
Repealing all of ACA would leave 1.9 million Ohioans with a preexisting condition without medical coverage – a figure which does not begin to count the elderly population that would also be impacted.