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ibusinesslines.com December 16, 2018


DOJ Argues Parts Of Obamacare Are Unconstitutional After Mandate Repeal

10 June 2018, 05:59 | Melissa Porter

Modal Trigger Jeff Sessions AP

Justice Department says heart of Obama Care unconstitutional

The filing declares unconstitutional the so-called individual mandate-which requires nearly all Americans to purchase health insurance or pay a "tax" if they don't-and calls for several elements of ACA to be invalidated.

A group of 20 US states sued the federal government in February, claiming the law was no longer constitutional after last year's repeal of that penalty that individuals had to pay for not having insurance.

But the lawsuit has been filed in a conservative court in Texas, and the Trump administration's refusal to defend key parts of the law has likely boosted the plaintiffs' chances.

Stacy Stanford, policy analyst for the Utah Health Policy Project, a think tank and advocacy organization that is also a federal health exchange enrollment hub, said "the Affordable Care Act is the law of the land and therefore the administration should be defending it".

Led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel, the lawsuit said that without the individual mandate, Obamacare in its entirety was unlawful. In this case, California is leading a group of Democrat-led states in defending the law. "That change eliminated the basis for the court's decision to uphold the ACA's constitutionality".


"The Trump administration once again is allowing premiums to go up and middle class Americans to pay more", Senate Minority Leader Chuck Schumer said in a tweet. The rest of the ACA can function without the mandate, the brief says, and should be retained. 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. There is reason to believe the judge may accept the Trump administration's arguments. Legal experts are also skeptical the case will prevail and say it will take many months for a decision in the case, and the lawsuit could play out for years because of appeals.

"In refusing to follow bipartisan tradition and defend the ACA in the USA federal court system, the Trump administration is nakedly admitting that it wants to eliminate protections for people with pre-existing conditions, breaking a promise that the president has made time and again", said Topher Spiro, vice president of health policy at the Center for American Progress. Previously, insurers could deny or restrict applicants' coverage based on their medical history, or carriers could charge higher premiums or offer only skimpy benefits to those who are or were sick.

If the court agrees with the Justice Department's argument to toss out part of the law that protects individuals with an existing medical condition, that could affect millions of Americans who buy insurance directly from the marketplace.

America's Health Insurance Plans, a major lobby for insurers, said in a statement that although premiums for next year will increase because the individual mandate penalty for not carrying insurance is being zeroed out in 2019, the market has been stabilizing. That ruling hinged on the reasoning that, while the government "does not have the power to order people to buy health insurance", as Chief Justice John Roberts wrote for the majority, it "does have the power to impose a tax on those without health insurance".

Moreover, if the Trump administration did not want to defend the ACA expressly, it could simply have filed a jurisdictional motion, asserting that the states are not injured by the lack of an individual mandate penalty and that the litigation is not yet timely, as the tax is still in effect.



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