Thwarting Trump, Sununu directs N.H. Attorney General to defend Affordable Care Act in federal court

  • Republican N.H. Gov. Chris Sununu gestures during his State of the State address at the State House in Concord, N.H., Thursday, Feb. 13, 2020. (AP Photo/Charles Krupa) Charles Krupa

  • N.H. Gov. Chris Sununu speaks at a rally Feb 11. Sununu said Wednesday that the state will join 17 others in defending the Affordable Care Act, as a case that is aimed at repealing the law goes before U.S. Supreme Court. AP file

Monitor staff
Published: 3/5/2020 11:27:14 AM

New Hampshire will join a multi-state effort to defend the Affordable Care Act from a federal court challenge, Gov. Chris Sununu said Wednesday evening, days after the Supreme Court said it would take up the case later this year.

New Hampshire will jump in with other states in fighting the effort of 18 states to dismantle the ACA through a challenge to its constitutionality, Sununu said.

The governor said the state had “no choice” but to defend the law in court, even if he disagrees with the law itself.

“As unsuccessful as the Affordable Care Act has been in bringing down costs, repealing the program without an adequate replacement would be harmful to the citizens of New Hampshire,” Sununu said.

In a follow-up comment, Sununu spokesman Ben Vihstadt said the decision was made because of the Supreme Court’s decision to take up the court case – which could result in the law being repealed nationwide.

The ACA, sometimes known as “Obamacare,” was a landmark act passed in 2010 that overhauled American insurance markets through regulation and established new subsidies.

The act included a requirement for insurance plans to cover certain “essential health benefits” and a mandate that insurers cover those with pre-existing condition. However, it lacked a public option, which would have allowed individuals with expensive policies to band together and choose a cheaper government-run plan.

Among the ACA’s provisions was a politically divisive component: the individual mandate. It required all Americans without an exemption to sign up for some form of health insurance or face a penalty – a piece supporters said was necessary to keep the insurance pools balanced.

In 2012, several states’ attorneys general sued the federal government for the first time over the individual mandate, arguing that the requirement that Americans buy health insurance was unconstitutional. But the Supreme Court ruled the mandate could be read as a tax, and therefore the ACA could stand.

Then, in 2017, President Donald Trump the Republican Congress passed the Tax Cuts and Jobs Act, which among other things reduced the ACA penalty tax to zero.

Now, in their second lawsuit, attorneys general representing a number of Republican-controlled states are making the case that with the tax portion gone, the 2012 Supreme Court decision no longer applies.

The mandate is not constitutional because it can no longer be read as a tax, those states argue. And with no “severability” clause in place to allow the Court to strike down only narrow portions of the ACA, the entire act must fall if the mandate is found unconstitutional, the case claims.

Sununu’s decision to thrust New Hampshire into the coalition of states opposing the lawsuit and potential repeal of the ACA puts him at odds with the Trump administration, which supports the lawsuit.

And it comes at a time when the lawsuit is gaining momentum.

In December, the United States Fifth Circuit of Appeals in New Orleans held that the law is unconstitutional, agreeing with a decision by the Federal District Court in Texas a year earlier.

The ACA has remained in effect pending further court review. On Monday, the Supreme Court said it would take up the case this year, with oral arguments likely in the fall and a decision likely by summer 2021.

Two days later, Sununu announced New Hampshire would join the effort to oppose the lawsuit.

Sununu’s decision comes after months of pressure from Democrats and progressive organizations for the governor to intervene in the lawsuit.

In the weeks leading up to the decision, Democratic politicians and organizations such as Protect Our Care and Granite State Progress had staged press conferences and issued press releases urging Sununu to jump in.

But even after the second-term Republican did so Wednesday, those critics said they weren’t satisfied, arguing it was “too little too late.”

Nick Taylor, campaign manager for Sen. Dan Feltes, a Concord Democrat running for governor this year, called it a “desperation move,” arguing that the governor was “covering his political vulnerabilities” by intervening in the lawsuit now.

And Executive Councilor Andru Volinsky, the other Concord Democrat running to unseat Sununu, called the move a “reluctant announcement.”

“His decision has everything to do with the fact that this is an election year, and nothing to do with an interest in healthcare for all,” Volinsky said.

But Vihstadt, the governor’s spokesman, said that the timing was a result of the progression of the lawsuit.

“Up until now, this case has been litigated in a different state and different federal circuit, where rulings would not have an immediate impact on New Hampshire,” Vihstadt said. “Now that the Supreme Court has taken the case, there is potential for a ruling that would affect our State and so Governor Sununu is taking action.

“Attempts by the Democrats to attack the governor over protecting health care for those with preexisting conditions are nothing more than shameful Washington-style politics,” Vihstadt said.

(Ethan DeWitt can be reached at, 369-3307, or on Twitter at @edewittNH.)
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