WASHINGTON - The US Justice Department on Thursday said the part of Affordable Care Act requiring people to have health insurance is unconstitutional, an unusual move that could lead to stripping away some of the most significant and popular parts of the law, better known as Obamacare.
Besides urging nullification of the insurance-buying mandate itself, the new government position argued that two of the most popular features of the ACA must fall along with it: the requirement that insurance companies can not deny health insurance to individuals because of existing or pre-existing medical conditions, and the requirement that they can not charge higher insurance premiums based on existing or pre-existing conditions.
Recent polling has found that health care is a crucial issue for voters this year.
These consumer protections proved enormously popular with Americans and are among the reasons why efforts to repeal Obamacare in Congress failed past year. "I think what they're doing is wrong, I think their attempts to overturn the Affordable Care Act have been wrong, but look, they're the majority, they set the schedule". Although the challengers had suggested that "a chain reaction of failed policymaking" would occur once the mandate was invalidated, the government lawyers said that the challengers could not show that striking down the mandate and the closely-tied coverage clauses "means that the ACA necessarily ceases to implement any coherent federal policy". However, Sessions added, "Outside of these two provisions of the ACA, the department will continue to argue that [the individual mandate] is severable from the remaining provisions of the ACA" and therefore the rest of the law is valid. In the new suit, California is leading a group of Democrat-led states in defending the law.
The lawsuit's key argument is that Congress intended for the pre-existing condition protections to work in tandem with the law's individual mandate, the provision that people have insurance or pay a penalty.
Economist Gail Wilensky, who's advised Republicans, said she's not sure about the timing of the administration's action. But the Department of Health and Human Services could, in theory, create exceptions to those rules or rewrite them in way that could upend coverage for some consumers midyear, Levitt said.
Expansions to Medicaid that occurred in individual states prior to the Affordable Care Act were excluded from the review analysis. He said the department only refused to defend the pre-existing conditions provision as well as one forbidding insurers from charging people in the same community different rates based on gender, age, health status or other factors.
Jonathan Adler, a law professor at Case Western Reserve University and an architect of a lawsuit that came within two Supreme Court votes of gravely damaging the ACA in 2014, said the current legal effort supported by the administration probably won't succeed. But the Justice Department now says it won't defend a key part of the law in court.
America's Health Insurance Plans, a major lobby for insurers, said in a statement that although premiums for next year will increase because the individual mandate penalty for not carrying insurance is being zeroed out in 2019, the market has been stabilizing. In addition, the government doesn't go so far as Texas and its fellow plaintiffs in arguing that the entire Affordable Care Act and the regulations issued under it are now invalid.
Typically, the department defends federal laws in court. Now, of course, as I mentioned, the attorneys general say that the entire rest of the law is unconstitutional without that penalty for not having insurance.
The reason so many people could be affected by this decision is because it would apply not just to people with individual insurance policies, "but also [to] people with preexisting conditions who have employer-sponsored coverage". For starters, it's pretty rare for the DOJ (under any party's control) to come out against an existing US law since it's generally in the business of trying to defend the law's constitutionality.
Asked about the Justice Department move, Jesse Hunt, a spokesman for the National Republican Congressional Committee, spoke instead about the Democrats.
Equally notable, three career prosecutors in the department withdrew from the case just before the administration announced the decision not to defend the health care law. "Both sides, Democrats and Republicans, are using the people as political pawns".
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.
If the court ultimately declared the provisions targeted by the Trump Administration unconstitutional, California would be temporarily cushioned from the effects because there are laws already on the books should the ACA - or its provisions - go away.