Trump administration will no longer defend the Affordable Care Act in court

Grant Boone
June 10, 2018

An obscure district court lawsuit over the Affordable Care Act became a potent threat to one of the law's most popular provisions late Thursday, when the Justice Department filed a brief arguing that as of January 1, 2019, the protections for people with preexisting conditions should be invalidated.

"The individual mandate thus still exists, but it will no longer be fairly possible to describe it as a tax because it will no longer generate any revenue", the Justice Department said in its brief on Thursday.

In court papers, the Justice Department said it doesn't want to stop the law in its tracks, but said they agreed with the plaintiffs who say the most famous parts of the law are now illegal.

Some critics of the administration's decision said California should go forward with enacting its own mandate for individual coverage, as a few other states have done.

How much you might feel the impact will also depend on where you live and whether you qualify for tax subsidies that significantly lower the cost of health insurance and, in some cases, make it free for lower-income people. 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.

But it says the rest of the law, including Medicaid expansion, can remain in place.

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

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The Department of Justice said it agrees with Texas that the so-called individual mandate will be unconstitutional without the fine.

Becerra is leading an effort by Democratic attorney generals from others states and the District of Columbia to defend the ACA against that lawsuit. "That change eliminated the basis for the court's decision to uphold the ACA's constitutionality".

"Zeroing out the individual mandate penalty should not result in striking important consumer protections", the group said.

The state has been at the forefront in resisting many Trump Administration policies, including on health care and immigration. There is reason to believe the judge may accept the Trump administration's arguments. Tom Miller of the American Enterprise Institute told Politico that the refusal to defend key parts of the ACA shows that the Trump administration is going even further in its battle against the health care law. The administration's argument would also allow insurers to charge women, older people, and people in certain occupations higher premiums.

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.

These consumer protections proved enormously popular with Americans and are among the reasons why efforts to repeal Obamacare in Congress failed past year.

Reyes said Friday that "the individual mandate can not be severed" from the parts of the Affordable Care Act that prohibit insurers from increasing a person's premium rates or denying them coverage based on their health history. Last year, Congress repealed the tax associated with the penalty, effective 2019.

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