An obscure district court lawsuit over the Affordable Care Act became a potent threat to one of the law's most popular provisions late Thursday, when the Justice Department filed a brief arguing that as of January 1, 2019, the protections for people with pre-existing conditions should be invalidated.
The legal challenge led by the state of Texas argues that these consumer protections - as well as the law's multibillion-dollar program for expanding the Medicaid safety net to poor Americans - should be scrapped because Congress a year ago repealed the penalty on Americans who don't have health coverage. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.
Last year, the House passed an Obamacare replacement but the Senate failed to pass its own, after three Republicans voted with Democrats to kill a bill that leveraged special budget rules to avoid a filibuster.
And Tim Hogan, a spokesman for Health Care Voters, a Democratic group looking to mobilize voters on the health care issue, called the decision a "blatant sabotage of the Affordable Care Act" and "something Republican members of Congress will have to explain to their constituents".
In short: The federal government is declining to defend federal law.
President Trump has long declared the ACA, also known as Obamacare, to be a "disaster", and the brief filed Thursday night is the latest attempt by his administration to weaken former president Barack Obama's signature health-care law.
Before the Trump administration'ss response on Thursday, Democratic Attorneys General filed [JURIST Report] a motion to intervene [text, PDF] in April to defend the ACA anticipating the Trump administration's intention to not uphold the legislation.
The filing declares unconstitutional the so-called individual mandate-which requires nearly all Americans to purchase health insurance or pay a "tax" if they don't-and calls for several elements of ACA to be invalidated. "It suggests that future administrations can pick and choose which laws they're going to enforce", he said. In their suit, lodged in February in the U.S. District Court for the Northern District of Texas, they argue that the entire law is now invalid.
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Insurers have faced risks tied to the Trump administration's efforts to undermine the Affordable Care Act since his election. These include a "ban on insurers denying coverage and charging higher rates to people with pre-existing health conditions".
U.S. Rep. Richard Neal, D-Springfield, and other House Democrats condemned the Trump administration Friday after the Justice Department announced it would not defend key provisions of the Affordable Care Act.
Sessions, in his letter to Ryan, said that the parts of the law restricting the variance in the premiums that could be charged and requiring insurers to cover everyone did hinge on the mandate, because without the mandate, "individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else".
Supreme Court ruled that opponents of the ACA individual coverage mandate could not win a preliminary injunction blocking the mandate, because the ACA individual mandate was a tax, and a federal law prohibits parties from seeking preliminary injunctions to block new federal taxes. Under another provision, the community rating provision, insurers were not allowed to set premiums based on a person's health history.
The 20 states that brought the lawsuit include Texas, Wisconsin, Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Nebraska, North Dakota, South Dakota, South Carolina, Tennessee, Utah, Virginia, and Gov. Paul LePage for the State of ME and Gov. Phil Bryant for Mississippi. In the legal filing, the Department of Justice argues in favor of invalidating protections for those Americans with pre-existing conditions. "This was often the case before the law took effect and would likely be the same should these essential protections be eliminated".
But the administration disagrees with that position.
Donald B. Verrilli Jr., a solicitor general in the Obama administration, said there were obviously reasonable arguments that could be made in defense of the Affordable Care Act in the Texas case, pointing to those in a brief filed Thursday by California and 15 other states. A Justice Department spokeswoman said the lawyers' withdrawal had been a department decision, declining to specify whether the lawyers had personally objected to continuing on the case.
Ironically, the existence of that financial penalty in the law was what had saved the individual insurance mandate from being struck down by the Supreme Court six years ago.