June 24, 2018

Trump’s New Plan to Dismantle Obamacare Comes With Political Risks

10 June 2018, 05:56 | Silvia Roy

Modal Trigger Jeff Sessions AP

Justice Department says heart of Obama Care unconstitutional

"The Justice Department's refusal to defend the Affordable Care Act in federal court is a stunning attack on the rule of law, the stability of our health care system, and Americans" access to affordable health care", said Reps.

A coalition of 20 USA states sued the federal government in February, claiming the law was no longer constitutional after last year's repeal of the penalty that individuals had to pay for not having insurance.

Attorney General Jeff Sessions sent a three-page letter to House and Senate leaders for both parties, saying the Justice Department wouldn't defend the individual mandate or the provisions, from a lawsuit filed by Texas and 19 other states.

These sections of the law, along with the mandate that insurers provide comprehensive coverage, are the bedrock of Obamacare's protections for those with pre-existing conditions. In that, lawmakers made a decision to eliminate the tax penalty the ACA requires people to pay if they flout the insurance mandate. The guarantee that people should be able to buy insurance regardless of their health history has been a popular provision of the divisive law - one that President Trump has praised, calling the law's prohibition on denying insurance to sick people "one of the strongest assets" of the ACA in a "60 Minutes" interview before he took office.

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The Trump administration is siding with Texas in the state's bid to convince a federal judge that Obamacare is largely unconstitutional.

California and 15 other states filed an opposing brief on Thursday defending the law. "That change eliminated the basis for the court's decision to uphold the ACA's constitutionality".

What are the ramifications of the Trump administration making these arguments? The rest of the ACA can function without the mandate, the brief says, and should be retained. The administration's argument would also allow insurers to charge women, older people, and people in certain occupations higher premiums. 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". 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. Tellingly, three career Justice Department attorneys withdrew from representing the United States immediately before filing the brief, apparently unwilling to sign their names to a legally questionable brief.

The DOJ claimed in court Thursday that the health care law's protections relating to pre-existing conditions are now improper, because the individual mandate was repealed.

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"Otherwise individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else", Sessions said in his letter to Pelosi.

Moreover, if the Trump administration did not want to defend the ACA expressly, it could simply have filed a jurisdictional motion, asserting that the states are not injured by the lack of an individual mandate penalty and that the litigation is not yet timely, as the tax is still in effect.

Because the lawsuit could easily go all the way to the U.S. Supreme Court, a process that could take years, the protections for people with preexisting conditions are likely to stay in place during that period.

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