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The Trump administration won't defend central provisions of the Affordable Care Act, saying in a legal filing Thursday night that key parts of the Affordable Care Act should be invalidated and that the individual mandate is unconstitutional.

At issue is a lawsuit filed by 20 Republican state attorneys general on February 26, which charged that Congress changes to the law in last years tax bill rendered the entire ACA unconstitutional. Rather, in the brief, the Justice Department says that only the section of the law dealing with the individual mandate is unconstitutional. The states argue that, because the TCJA has eliminated the individual mandate penalty, the ACA individual mandate is no longer a tax law.

What it means: If successful, the states' lawsuit would allow insurers to charge much higher rates to people with pre-existing conditions, or deny them coverage altogether, effectively ending the ACA's promise of providing health care for all Americans. The Justice Department seeks a declaratory judgment that those provisions will be invalid as of January 1.

"Should this case be successful, people with cancer, heart disease, diabetes, lung disease and any serious or chronic condition are likely to be denied coverage due to their pre-existing conditions or charged such high premiums because of their health status that they will be unable to afford any coverage that may be offered".

Attorney General Jeff Sessions wrote a letter to House Speaker Paul Ryan explaining that this is a "rare case" that warrants deviating from the Justice Department's "longstanding tradition of defending the constitutionality of duly enacted statutes".

Obamacare's protections for those with pre-existing conditions are overwhelmingly popular, with 70 percent of respondents to a recent Kaiser Family Foundation poll supporting that part of the health-care law.

The Texas district court judge, Judge Reed O'Connor, still has to rule on the request Texas and Texas' allies have made for the preliminary injunction. The administration's arguments are so radical that, just before the brief was filed, several career attorneys in the Justice Department working on the case filed a motion to withdraw, refusing to sign their name to the arguments the administration was advancing. One of their replacements is Brett Shumate, described by the Times as "a Trump administration political appointee in the civil division of the Justice Department who has played a leading role in defending the White House in a range of lawsuits". This portion of the law prohibits insurers from setting premiums based on a person's health history. "So now that Congress has removed the penalty part from that mandate, they're arguing that the structure simply can not work anymore".

The new challenge comes six years after the Supreme Court's divided ruling that the ACA is constitutional.

If the court agrees with the Justice Department's argument to toss out part of the law that protects individuals with an existing medical condition, that could affect millions of Americans who buy insurance directly from the marketplace. Their argument begins with the fact that, when the Supreme Court upheld the individual mandate, it did so in a very odd way. The court ruled that the individual mandate was unconstitutional under Congress's Commerce Clause power as Congress can not compel individuals to participate in an area of commerce. "Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019". In its brief the Justice Department argues two main points.

Mr. MacArthur said it would be hard for Congress to revisit the brutal health care fight, although it's unclear if the lawsuit will get "any legs under it".

Though Republicans loathe the 2010 law, many of them have pushed for market-oriented solutions that allow sicker Americans to obtain insurance without facing sky-high prices. But it does certainly raise the prospect of a court decision that would say there could be no more protections for people with preexisting conditions.

But Bagley noted that the Trump administration "loathes the ACA" and the Obama administration's refusal to defend Defense of Marriage Act, a federal law that defined marriage between a man and a woman back in 2011, sets precedent.


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