Tennessee Attorney General Slatery defends legal challenge to ACA

Tennessee Attorney General Slatery defends legal challenge to ACA

December 30th, 2018 by Andy Sher in Local Regional News

Tennessee Attorney General Herbert Slatery III speaks to attendees at a Pachyderm Club meeting on Oct. 26, 2015, in Chattanooga.

Photo by John Rawlston /Times Free Press.

NASHVILLE — Tennessee Attorney General Herbert Slatery is defending his participation in a lawsuit that earlier this month led to a federal judge's ruling that the 2010 Affordable Care Act is unconstitutional.

"The ACA has been ruled constitutionally flawed in a federal district court decision which will be appealed to the 5th Circuit Court of Appeals," Slatery said in a recent statement. "It is important to point out the court did not issue an injunction. Therefore, nothing will change until the appeals are final."

Slatery said "at the heart of this case is the Commerce Clause of our Constitution that, according to the court, prevents Congress from compelling Tennesseans to buy insurance, especially if they can't afford it or don't want it.

"Ultimately," Slatery added, "it is up to Congress to provide lawful solutions to health care coverage, not just debate or campaign on it."

In his Dec. 14 ruling on the legal challenge brought by Slatery and 19 fellow Republican state attorneys general, U.S. District Court Judge Reed O'Connor of Texas held that because a 2017 congressional tax bill eliminated penalties for adults who don't have health insurance, the ACA was unconstitutional.

That struck at the heart of a 2012 decision by the U.S. Supreme Court that upheld the law and the mandate to have insurance, saying it was constitutional because it fell under Congress's taxing power.

In their new challenge to the law, Slatery and others argued that with the penalty gone, the individual mandate had become unconstitutional. O'Connor, a Republican appointee, agreed and ruled remaining parts of the law couldn't be severed from it.

Democratic state attorneys general in 16 states have told O'Connor he needs to clarify his decision in order to let them get on with their appeal. They said his order wasn't final and has no immediate effect but that a prompt appeal is needed "to avoid the widespread confusion and extraordinary disruption that would" occur if the litigation followed its normal course, Bloomberg Law has reported.

The Trump administration, meanwhile, filed its own brief saying the question of whether the individual mandate is severable is a "controlling question of law as to which there is substantial ground for difference of opinion" and should be determined by the appeals court, Bloomberg Law also reported.

Tennessee-based Democrats and health care activists have denounced O'Connor's ruling and sharply criticized Slatery's participation, warning of "cruel" consequences for nearly 1.7 million Tennesseans with pre-existing health problems as well as a quarter of a million people who obtain their insurance coverage through the ACA's insurance exchanges.

Other concerns include the potential impact the ruling has on a popular ACA law provision that requires health plans that offer coverage to dependent children on their parents' plan to make that coverage available until the adult child reaches the age of 26, regardless of whether the young adult is still considered a dependent for tax purposes.

After the district court ruling came down, the Rev. Morgan Gordy, pastor of Christ Lutheran Church in Nashville and a member of the Southern Christian Coalition, said: "Scripture tells us that health care is our responsibility. To invalidate the ACA is an immoral act. It robs people of their ability to seek and receive health care."

Calling the issue a matter of "life and death," Gordy added, "I urge Attorney General Slatery to remove Tennessee from this lawsuit."

Contact staff writer Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow on Twitter @AndySher1.

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