For the first time, the Trump Administration moved on Thursday to challenge the constitutionality of the key section of the Affordable Care Act ("Obamacare") that required most Americans to buy health insurance or pay a financial penalty as part of their taxes.
The Justice Department said that also nullified two other major provisions of Obamacare linked to the individual mandate, including one barring insurance companies from denying coverage to people with preexisting conditions.
Democrats swiftly portrayed the surprise move by the Justice Department, outlined Thursday in a brief supporting a court case filed by Texas and 19 other states, as a harsh blow to Americans with fragile health and their families. 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.
In its brief, also filed on June 7, the Justice Department abandoned its customary role of defending laws passed by Congress and took the side of Texas, agreeing that the mandate is now unconstitutional. Lisa Murkowski of Alaska and Susan Collins of ME, previously helped tank Republicans' efforts to repeal and replace the ACA citing their concerns over the possible elimination of coverage for people with pre-existing conditions. "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". The states argue that after Congress eliminated the penalty for the individual mandate previous year, effective in 2019, it destabilized other sections of the law.
One wrinkle that could keep the case alive, even if the states that oppose the ACA and the Trump administration want to resolve the case in favor of Texas and its allies, is that California, New York and other states that support the ACA have asked to intervene.
The states argue that now that Congress repealed the penalty for not having coverage in the tax bill past year, ObamaCare's individual mandate can no longer be upheld as a tax, and that it therefore should be invalidated.
The administration said it agrees with Texas.
The mandate is the core provision of the ACA and is inseparable from the rest of the President Obama's signature law, the plaintiffs said.
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.
Indeed, polls have shown over and over again that the policy issue most on voters' minds right now is health care. While it is uncommon for the Justice Department to go against federal law, Attorney General Jeff Sessions said that he acted with the "approval of the President of the United States".
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The case in Texas, which has attracted relatively little notice until now, emerges from the massive tax bill Congress passed late past year.
The Trump administration Thursday did not go that far.
"Zeroing out the individual mandate penalty should not result in striking important consumer protections", the group said.
"The goal of Texas' lawsuit is to leave Americans without health insurance, forcing them to choose between their health and other needs", says California Attorney General Xavier Becerra.
Regardless of the federal court's ruling-which observers said may come by late summer or early fall-New York state law now protects consumers from such actions by insurers.
The news rallied defenders of the law into action and raised questions among legal scholars about the likelihood it would succeed.
Among them is Andy Kim, a former Obama administration national security aide who is running to unseat New Jersey Republican Representative Tom MacArthur, sponsor of an amendment to the GOP's 2017 Obamacare repeal that allowed states to seek waivers to charge higher premiums to people with preexisting conditions.
But the administration disagrees with that position.
Sessions agreed that the executive branch has a "longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense". 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. Conservatives at the time accused the Justice Department of politicization. The lawsuit will be heard by U.S. District Judge Reed O'Connor of the Northern District of Texas.
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.