They argue that only the ACA's individual mandate should be struck down, leaving the rest of the legislation in place.
The GOP attorneys general in Montana and Ohio are publicly dissenting from the pack of 18 Republican attorneys general who are urging federal appellate judges to take down the entire Affordable Care Act.
Montana Attorney General Timothy C. Fox and Ohio Attorney General Dave Yost filed a joint amicus brief Monday in the Fifth Circuit, where an appeal is pending after a lower court declared the entire ACA invalid. They argued that only the ACA's individual mandate should be struck down, leaving the rest of the legislation in place.
"This is the rare case that involves constitutional overreach by two separate branches," Fox and Yost wrote. "Congress acted unconstitutionally by enacting the individual mandate and the court below exceeded its power by striking down the Affordable Care Act in full."
Their contribution to the legal wrangling over the ACA comes as the Trump administration shifted its legal position last week to argue the entire law should fallโan outcome that would undercut some of the Trump administration's own healthcare policy agenda.
Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.
KEY TAKEAWAYS
Eighteen GOP attorneys general argue the entire ACA should fall, but two other Republican attorneys general are publicly disagreeing.
The two dissenters argue the ACA's individual mandate is unconstitutional and severable from the rest of the law.