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Recently, 20 States, led by Attorney General Ken Paxton of Texas and Attorney General Brad Schimel of Wisconsin, filed a lawsuit challenging the constitutionality of Obamacare based upon Chief Justice John Robert's reasoning in NFIB. The Chief Justice had reasoned that Obamacare's individual mandate is only constitutional because it can be read together with a related tax penalty provision as a single tax. In the recent tax reform law, Congress eliminated the tax penalty, but left the individual mandate in place. Misha Tseytlin, Solicitor General of Wisconsin, explains the States' argument that this change in law renders the individual mandate unconstitutional under the Chief Justice's reasoning and that other portions of the law are inseverable from the mandate. Professor Jonathan Adler explains why he is skeptical of the state AGs' claims and identify potential obstacles to this suit's success.
Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
Misha Tseytlin, Solicitor General for the State of Wisconsin
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