Trump administration will not defend sections of Affordable Care Act

Jim West via ZUMA

Jim West via ZUMA

The Trump administration told a federal court on Thursday that it wouldn't defend key provisions of the Affordable Care Act (ACA), saying in a brief that it believed the individual mandate is unconstitutional and inviting the court to invalidate key portions of the law, such as the pre-existing conditions protections.

The Trump administration is siding with a court case that says the Affordable Care Act (ObamaCare) is unconstitutional. The lawsuit, led by Texas Attorney General Ken Paxton, contends that without an individual mandate, the entirety of the ACA, commonly known as Obamacare, is unconstitutional.

"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. By contrast, the Justice brief and letter say many other aspects of the law can survive because they can be considered legally distinct from the insurance mandate and such consumer protections as a ban on charging more or refusing coverage to people with preexisting medical conditions. In that case, the Supreme Court held up the individual mandate as constitutional only because it could be construed as a tax that raised revenue for the government.

The administration called on the court to declare the provisions that guarantee coverage to be invalid beginning on January 1, 2019, when the mandate penalty goes away.

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The Department of Justice (DOJ) announced Wednesday night it will not defend several critical patient protections in the health law and instead is arguing to end them.

"Should this case be successful, people with cancer, heart disease, diabetes, lung disease 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". The lawsuit will be heard by U.S. District Judge Reed O'Connor of the Northern District of Texas.

The Washington Post reported that three career Justice attorneys involved in the case - Joel McElvain, Eric Beckenhauer and Rebecca Kopplin - withdrew before the filing at 6 p.m. Thursday, an unusual time for such an action. One of their replacements is Brett Shumate, described by the Times as "a Trump administration political appointee in the civil division of the Justice Department who has played a leading role in defending the White House in a range of lawsuits". Congress recently repealed a provision that people without health insurance must pay a fine. In that, lawmakers made a decision to eliminate the tax penalty the ACA requires people to pay if they flout the insurance mandate. Hasn't the Supreme Court already found the individual mandate as constitutional?

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.

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Becerra accused the administration of going “AWOL.” It “has chose to abandon the hundreds of millions of people who depend on” the law, he said in an interview with Kaiser Health News. Jost wrote that the development puts health insurers in a quandry, since they are now setting rates for the individual market in 2019.

One of the attorneys who remains on the case, Chad Readler, was nominated by the Trump administration to the Sixth Circuit Court of Appeals on Thursday.

Back when Republicans were trying to come up with a way to repeal the Affordable Care Act, they quickly realized that while most Americans had only a vague sense of what was in the law, there were parts of it that were extraordinarily popular.

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While they provide major protections to those with pre-existing conditions, they also have pushed up premiums for those who are young and healthy. The lawsuit injects more uncertainty into what is already an uncertain environment for insurers. This decision by the Trump administration to selectively defend the rule of law and to prioritize the pocketbooks of insurance companies and their shareholders over the very lives of people living with and affected by HIV is unconscionable.

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