DOJ calls Obamacare preexisting condition protection unconstitutional

Credit  Stephen Boitano  Polaris  Newscom

Credit Stephen Boitano Polaris Newscom

The U.S. Justice Department has told a Texas federal court that it won't defend provisions in the Affordable Care Act that ban insurers from refusing to cover people with pre-existing conditions and from charging them more money.

In a federal court case filed by Texas and 19 other states against the ACA, the Justice Department filed a brief on Thursday that dubbed unconstitutional the Obamacare requirement for all Americans to have insurance.

"Congress is always free to amend its statutes, even to omit what it previously thought was essential", writes Nick Bagley, a law professor at the University of MI, in a Thursday evening blog post.

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

Bagley said the brief reveals the "depth of institutional decay at the Department of Justice" and he expressed profound concern about the precedent it sets.

"There's some hope that they will prevail", Stanford said. For example, the Obama administration refused in 2011 to defend the federal Defense of Marriage Act, which blocked federal recognition of same-sex marriages in some states.

The long-shot lawsuit argues that because Republicans repealed the ACA's individual mandate penalty as part of their tax overhaul, all of the remaining law is unconstitutional.

The legal challenge led by the state of Texas argues that these consumer protections - as well as the law's multibillion-dollar program for expanding the Medicaid safety net to poor Americans - should be scrapped because Congress a year ago repealed the penalty on Americans who don't have health coverage.

This claim is based on two features of the law's text: It contains no severability clause - standard language to the effect that the statute would remain valid even if one or more of its provisions proved to be in violation of existing law - and its explicit assertion that the ACA can not function without the individual mandate.

The Trump administration, however, is seeking to gut two core provisions that guarantee that these folks can get health insurance and that they won't have to pay more for it.


"Zeroing out the individual mandate penalty should not result in striking important consumer protections", America's Health Insurance Plans said in a statement. But take a moment to marvel at the position the administration has taken: They think insurance companies should once again be able to deny you coverage or charge you outrageous premiums because you have a pre-existing condition.

And it didn't take long for Democrats to respond to the Trump administration's new posture. "The ACA is the law of the land and DOJ should defend it".

Just hours before the Justice Department officially withdrew from the case, three of the staff attorneys who had been working on it withdrew. "The White House needs to hear that the American people will not stand for this", Murphy said. These are lawyers who have made arguments they personally disagreed with countless times.

"These attorneys are civil servants". Yet they could not sign it.

The main trade association for health insurers came out strongly against the administration's position. That's because insurers already expected the Trump administration would not defend the ACA - and they know that a resolution of the case will be years away, says industry consultant Robert Laszewski. The Kaiser Family Foundation puts the number at about a quarter of the country's under-65 population.

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".

Defenders of Obamacare blasted DOJ's move. States like California will take up the law's defense and the legal battle will continue.

"United States, the department will not defend the constitutionality of [the individual mandate], and will argue that certain provisions of the Affordable Care Act (ACA) are inseverable from that provision", U.S. Attorney General Jeff Sessions wrote in a letter to House Speaker Paul Ryan (R-Wis.) explaining his decision. Prior to Obama Care, insurance companies had the right to raise the cost of premiums on a yearly basis.

Andy Kim, a former Obama administration staffer, is making coverage of pre-existing conditions and access to affordable health care a key part of his campaign against Rep. Tom MacArthur in Central New Jersey, the author of the Obamacare repeal bill that passed the House but failed in the Senate a year ago.

The fresh potential that the courts could deliver a significant blow to the ACA arises after a years-long perseverance by Republicans to repeal much of the sprawling 2010 statute ended in failure a year ago, leading GOP attorneys general, governors and the Trump administration to turn to the courts and administrative actions to undermine the law.

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