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Trump admin: We won't defend Obamacare

11 June 2018

The Trump administration delivered an early midterms present to Democrats Thursday night when the Justice Department made a decision to side with 20 GOP states in a lawsuit seeking to gut the core protections of the Affordable Care Act for people with pre-existing conditions.

The federal lawsuit hinges on the ACA's individual mandate, or the requirement to get health coverage or pay a penalty. "The decision by the Department of Justice to abandon critical patient protections is devastating for the millions of Americans who suffer from serious illnesses or have preexisting conditions and rely on those protections under current law to obtain life-saving healthcare", read a joint statement from the American Cancer Society Cancer Action Network, the American Diabetes Association, the American Heart Association, the American Lung Association and the National Multiple Sclerosis Society.

But that mandate was crucial to persuading insurers to offer plans under the ACA. They say the rest of the law is not able to be separated from the mandate, and therefore should also be overturned.

Democrats swiftly portrayed the surprise move by the Justice Department, outlined Thursday in a brief supporting a court case filed by Texas and 19 other states, as a harsh blow to Americans with fragile health and their families. Without that form of tax, the new Administration document noted, the ACA mandate to buy insurance would be unconstitutional as beyond Congress's power to regulate interstate commercial activity.

But Congress repealed the tax penalty for people without insurance past year, and the individual mandate can no longer be described as a tax when the repeal takes effect in January, the brief says. Without the tax penalty, they argue, "the Court should hold that the ACA is unlawful and enjoin its operation". A December 2016 poll by the nonpartisan Kaiser Family Foundation found that 75 percent of Democrats and 63 percent of Republicans approved of the law's provision prohibiting insurance companies from denying coverage based on a person's health status or medical history. The Justice Department seeks a declaratory judgment that those provisions will be invalid as of January 1.

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Republicans are divided between conservatives who had vowed to eliminate the law and moderates, some in tough races, who want to preserve the popular protections for people who are sick. Estimates vary widely because there is not a standard definition of what counts as a pre-existing condition. Even if the ACA were to disappear under Republican control, at least a promise to maintain pre-existing condition care would keep their options open. Of course, not all of them buy coverage on their own. Under normal circumstances, the federal government would defend the law. It said in a brief that the Affordable Care Act's rules barring insurers from denying coverage or charging different rates based on a person's medical history should no longer be enforced because they were created to work alongside the individual mandate.

Don't look for big changes quite yet, though the move could boost premiums and reduce choices among plans as early as 2019. In May, the court allowed them to "intervene" in the case. So the pre-existing condition protections are likely to stay in place during that period. Without restricting premiums most individuals may choose to go without. O'Connor was appointed by George W. Bush and recently ruled that health care providers can not be forced to perform procedures that conflict with their religious beliefs.

But others say the legal brief may have minimal impact next year on premiums. "United States are correct that Section 5000A (a) [the individual mandate] will be unconstitutional when the Jobs Act's amendment becomes effective in 2019".

Senior House Democrats on health care committees called the administration's refusal to defend the federal health law a "stunning attack on the rule of law". Now his administration is walking back on that promise in a major way.

More recently, the White House and Department of Health and Human Services have been working to make it easier for consumers to buy relatively affordable health plans that exclude some of the benefits the ACA requires.

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In 2015, the court ruled that Congress did not intend to provide financial aid exclusively for premiums to individuals in states that operated their own insurance exchanges.

"Texans have known all along that Obamacare is unlawful and a divided Supreme Court's approval rested exclusively on the flimsy support of Congress' authority to tax", said Paxton when the suit was filed.

This is a huge deal... the administration's behavior sets a unsafe precedent about the obligation of this and future presidents to follow their constitutional duty to faithfully execute the laws enacted by Congress....

Other legal observers point out that's not how the lawmaking process works. "Nothing yet", wrote Tim Jost, emeritus professor of law at Washington & Lee University, in Lexington Va., in a blog post for the Commonwealth Fund. The 2012 SCOTUS ruling precludes any claim that Congress had the authority to impose the mandate pursuant to its powers under the Commerce Clause.

A group of Democratic state attorneys general, lead by California's Xavier Becerra, are riding to the law's defense. They will also have to contend with the following assertion from the Attorney General of the United States: "I have determined that the plaintiffs in Texas v". Already, Democratic candidates in the midterm elections had been playing up their party's role in blocking last year's repeal efforts and their recent success in pushing for the expansion of Medicaid in two more states.

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Although the challengers had suggested that "a chain reaction of failed policymaking" would occur once the mandate was invalidated, the government lawyers said that the challengers could not show that striking down the mandate and the closely-tied coverage clauses "means that the ACA necessarily ceases to implement any coherent federal policy". "It's important for consumers to know that the Affordable Care Act and the protections it ensures for their coverage are still the law, and they should continue to see their health providers and plan to shop for coverage this fall as they have any other year", says Imholz.

Trump admin: We won't defend Obamacare