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Nancy Pelosi speaks at a conference about the White House's targeting of the ACA's pre-existing conditions. Photo: Toya Sarno Jordan/Getty Images

Congress could easily get rid of the GOP lawsuit that threatens the entire Affordable Care Act — if Democrats want to force the issue. But two of the smartest pro-ACA legal experts are divided over whether that’s a good strategy.

Refresher: The lawsuit, filed by Republican attorneys general, argues that the ACA’s individual mandate is invalid because Congress has zeroed out the penalty for not having insurance — and the penalty, not the mandate it was enforcing, is what the Supreme Court upheld in 2012. A great many legal experts consider the GOP's argument a long shot, but it won the first round of legal proceedings.

There's an easy fix: Just repeal the mandate. It's not in effect, and realistically, Democrats are unlikely to ever raise the penalty back above $0.

What they're saying:

  • Go for it, says University of Michigan law professor Nick Bagley. At best, Democrats would neutralize a lawsuit that could undo the ACA. At worst, they'd be putting Republicans on the record about the future of protections for people with pre-existing conditions.
  • Not so fast, argues Washington & Lee's Tim Jost. He's afraid that if Democrats attempted such a fix but failed, conservative judges could take it as a tacit admission that there’s a problem, and use that as a pretext to strike down the ACA.

Go deeper: Andrew Sprung, one of the Internet's best ACA resources, spoke to both Bagley and Jost and has a good roundup about all this on his blog.

Go deeper

3 hours ago - Politics & Policy

Kellyanne Conway's parting power pointers

Kellyanne Conway addresses the 2020 Republican National Convention. Photo: Nicholas Kamm/AFP via Getty Images

Kellyanne Conway has seen power exercised as a pollster, campaign manager and senior counselor to President Trump. Now that his term in office has concluded, she shared her thoughts with Axios.

Why it matters: If there's a currency in this town, it's power, so we've asked several former Washington power brokers to share their best advice as a new administration and new Congress settle in.

3 hours ago - Politics & Policy

GOP holdouts press on with plans to crush Cheney

Screenshot of emails to a member of Congress from individuals who signed an Americans for Limited Government petition against Rep. Liz Cheney. Photo obtained by Axios

Pro-Trump holdouts in the House are forging ahead with an uphill campaign to oust Rep. Liz Cheney as head of the chamber's Republican caucus even though Minority Leader Kevin McCarthy told them to back down.

Why it matters: What happens next will be a test of McCarthy's party control and the sincerity of his opposition to the movement. Cheney (R-Wyo.) is seen as a potential leadership rival to the California Republican.

Democrats aim to punish House GOP for Capitol riot

Speaker Nancy Pelosi passes through a newly installed metal detector at the House floor entrance Thursday. Photo: Drew Angerer/Getty Images

House Democrats plan to take advantage of corporate efforts to cut funding for Republicans who opposed certifying the 2020 election results, with a plan to target vulnerable members in the pivotal 2022 midterms for their role in the Jan. 6 violence.

Why it matters: It's unclear whether the Democrats' strategy will manifest itself in ads or earned media in the targeted races or just be a stunt to raise money for themselves. But the Capitol violence will be central to the party's messaging as it seeks to maintain its narrow majorities in Congress.