By Ariane de Vogue and Tami Luhby, CNN
(CNN) — The Trump administration won’t defend central provisions of the Affordable Care Act, saying in a legal filing Thursday night that key parts of the Affordable Care Act should be invalidated and that the individual mandate is unconstitutional.
The filing came in a lawsuit brought by the state of Texas and a coalition of other Republican-led states who have filed suit in the United States District Court for the Northern District of Texas challenging the constitutionally of the Affordable Care Act. The states argue that after Congress eliminated the penalty for the individual mandate last year, effective in 2019, it destabilized other sections of the law.
“In its filing the DOJ said that it agrees with Texas that the individual mandate is now unconstitutional and therefore it will not defend key provisions of the law in the suit,” said Timothy Jost, of Washington and Lee University School of Law.
The provisions DOJ says should be invalidated are central to the ACA and would gut protections for those with pre-existing conditions.
Guaranteed issue requires insurers to offer coverage to everyone regardless of their medical history. Prior to the ACA, insurers often rejected applicants who were ill or had pre-existing conditions or only offered them limited coverage. Under another provision, the community rating provision, insurers were not allowed to set premiums based on a person’s health history.
These two provisions, which have proved extremely popular with Americans, forced major changes to the health insurance industry.
While they provide major protections to those with pre-existing conditions, they also have pushed up premiums for those who are young and healthy. This group of people would have likely been able to get less expensive policies prior to Obamacare.
The two provisions, along with Obamacare’s requirement that insurers offer comprehensive coverage, have been targets of Republicans seeking to repeal the law and lower premiums.
In announcing the lawsuit back in February, Texas Attorney General Ken Paxton said, “The US Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional. With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all.”
In court papers, lawyers for Texas asked a Texas judge to hold that the ACA is unlawful and enjoin its operation.
“The DOJ agrees with Texas that the individual mandate is unconstitutional once the tax penalty was zeroed out, and if it is struck down, the guaranteed issue and community ratings provisions go with it,” said Jost.
“In other words, people can once again be denied insurance because of pre-existing conditions or be charged more,” Jost said.
Defenders of Obamacare blasted DOJ’s move.
“Tonight, as the president and his administration launch their most dangerous sabotage effort yet, we are seeing just how far Republicans are willing to go in their quest to undermine the American health care system,” said Brad Woodhouse, campaign director of Protect Our Care, an advocacy group staffed with many Obama administration alums.
Meanwhile, California and several other states filed a motion to intervene to defend the law. California Attorney General Xavier Becerra, joined by 16 other attorneys general, said in April he would “vigorously” defend the ACA.
“The Texas lawsuit is based on a dubious legal claim with the sole goal of stripping Americans of their healthcare,” Becerra said in a statement in April. “In California, millions of people receive quality, affordable healthcare under the ACA, many for the first time.”
He said to “roll back the clock” would be “irresponsible and dangerous.”
After filing the brief in Texas, Attorney General Jeff Sessions informed Speaker of the House Paul Ryan of the decision. He said he acted after “careful consideration” and with the “approval of the President of the United States.”
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.” But, he said, he had concluded that “this is the rare case where the proper course is to forgo defense” of the individual mandate. He noted that the Tax Cuts and Jobs Act becomes effective in 2019.
Professor Nicholas Bagley, of the University of Michigan, says the case required the Trump administration to decide whether it will defend the ACA from constitutional attack.
“The Justice Department has an entrenched, long-standing and bipartisan commitment to defending congressional statutes if reasonable arguments can be made in their defense,” he wrote for the Yale Journal on Regulation in March.
“It’s a bedrock convention of our constitutional structure, one that prevents the executive branch from using litigation strategy to undo Congress’ handiwork,” he said.
But Bagley noted that the Trump administration “loathes the ACA” and the Obama administration’s refusal to defend Defense of Marriage Act, a federal law that defined marriage between a man and a woman back in 2011, sets precedent.
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