Justice Dept. Declines to Defend Some Key ACA Provisions

The Trump administration is calling a key part of Obamacare that protects individuals with pre-existing conditions unconstitutional

"Should this case be successful, people with cancer, heart disease, diabetes 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". That ruling hinged on the reasoning that, while the government "does not have the power to order people to buy health insurance", as Chief Justice John Roberts wrote for the majority, it "does have the power to impose a tax on those without health insurance". "Now we're in the situation where very sick people have gotten insurance, and so changing the rules means taking coverage away from people who genuinely need it".

Congress a year ago struck down only the tax penalty enforcing the individual-insurance mandate, and left the rest of the law intact.

Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate a year ago, also expressed concern about the administration's new push, saying it "creates further uncertainty that could ultimately result in higher costs for millions of Americans and undermine essential protections for people with pre-existing conditions, such as asthma, cancer, heart disease, arthritis and diabetes".

That was what five Justices of the Supreme Court said when a different combination of five Justices voted to uphold the mandate as a form of tax.

If the judge agrees, "insurers would want to discontinue" health plans that treat healthy and sick customers the same, predicted Larry Levitt, a senior vice president at the Kaiser Family Foundation. Without that form of tax, the new Administration document noted, the ACA mandate to buy insurance would be unconstitutional as beyond Congress's power to regulate interstate commercial activity. "Congress has now kicked that flimsy support from beneath the law".

"So many families from every political persuasion will lose the ability to find and purchase coverage because they have a pre-existing condition", Wood said. "Congress needs to work in a bipartisan manner to develop a solution that covers pre-existing conditions and makes health care more affordable and accessible for every American". It also agrees that the ACA's provisions affecting Medicaid, Medicare Advantage, and Medicare Part D should remain law.

The DOJ's decision not to defend the mandate's constitutionality will not prevent the court in Texas v United States from resolving the question, Sessions said.

The state has been immune to some of the turmoil underway in other parts of the country, where insurance options have dwindled to just one or two plans in some counties.

The chances for that argument succeeding are viewed with deep skepticism by legal experts, in part because Congress itself indicated that the rest of ObamaCare could still stand without the mandate when it moved to repeal the tax penalty a year ago. Under another provision, the community rating provision, insurers were not allowed to set premiums based on a person's health history. "It's important for consumers to know that the Affordable Care Act and the protections it ensures for their coverage are still the law, and they should continue to see their health providers and plan to shop for coverage this fall as they have any other year", says Imholz. California Attorney General Xavier Becerra, joined by 16 other attorneys general, said in April he would "vigorously" defend the ACA. "This is a sad moment".

Sessions said in his letter that the Justice Department was not arguing that the entire law does not pass constitutional muster.

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".

"Withdrawing from a case en masse like this, right before the brief is filed, is unheard of", noted Nicholas Bagley, a former Justice Department lawyer who now teaches at the University of Michigan Law School. "Such withdrawals are exceedingly rare - typically only when the argument is indefensible, as they are here". Conservatives at the time accused the Justice Department of politicization. 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.

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.

The suit is being heard by Judge Reed O'Connell, who was appointed by President George W. Bush and has ruled against the ACA in other cases the past few years.

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