USA to No Longer Defend Key ACA Provisions

Jun 12, 2018, 01:46
USA to No Longer Defend Key ACA Provisions

One example, unfolding right now in the midst of the president's various rhetorical wars - with our Group of Seven partners, with the special counsel, with his own attorney general - is the administration's remarkable move not to defend the constitutionality of key parts of the Affordable Care Act.

The Justice Department's decision was announced Thursday in a filing in federal court in Texas.

The Trump administration's startling decision to abandon one of the Affordable Care Act's most popular provisions - protections for people with preexisting medical conditions - put Republicans on the defensive Friday and handed Democrats a potentially potent political message.

Democrats, who were already favored going into this November's election both on the generic ballot and on health care in particular, pounced on the news of the lawsuit, predicting "serious blowback in the midterms" for Republicans. Insurers were not allowed to raise costs for people with pre-existing medical conditions.

"Insurance companies hate uncertainty, and when they face uncertainty, they tend to increase premiums and hedge their bets", said Larry Levitt of the nonpartisan Kaiser Family Foundation. They say the rest of the law is not able to be separated from the mandate, and therefore should also be overturned.

While they provide major protections to those with pre-existing conditions, they also have pushed up premiums for those who are young and healthy.

Texas and other states that oppose the ACA have responded by filing a suit in the U.S. District Court for the Northern District of Texas.

At issue is a lawsuit filed by 20 Republican state attorneys general on February 26, which charged that Congress changes to the law in last years tax bill rendered the entire ACA unconstitutional.

While the ACA has been the target of a sharply divided and partisan debate for almost a decade, pre-existing protections are one of the most popular actions Congress has taken in modern times. It is certainly clear that in zeroing out the individual mandate penalty in 2017, Congress did not mean to bar people with preexisting conditions from insurance.

One wrinkle that could keep the case alive, even if the states that oppose the ACA and the Trump administration want to resolve the case in favor of Texas and its allies, is that California, New York and other states that support the ACA have asked to intervene.

You may remember that the Obama team was anxious about the interaction between the individual mandate and the popular ACA provisions that say insurance companies can't refuse to cover anybody because of pre-existing conditions and can't charge you more if you are already sick.

"We need to take care of the people", she said over coffee in Nampa, a Boise suburb she has represented in the state House for the last eight years.

Recent polling indicates that this could be a political victor for Democrats attempting to recapture at least one chamber of Congress. If the court ends up siding with the Trump administration and the Republican states that brought the suit, the consequences would be significant, Perlman said.

The administration last fall ended a key payment to insurers that helped lower the cost of insurance for low-income Americans who purchased marketplace insurance. Under normal circumstances, the federal government would defend the law.

The Democrats argued that DOJ's refusal to defend the controversial health care law could eliminate protections for millions of Americans with pre-existing conditions and "have profound consequences for patients, the health care system and the American economy".

It is unusual for the Justice Department to refuse to defend existing law in court challenges. Now, of course, as I mentioned, the attorneys general say that the entire rest of the law is unconstitutional without that penalty for not having insurance. Those two were so closely tied to the insurance-buying mandate that they would not work in the health insurance market without the guaranteed pool of insured people that the mandate was designed to create, Administration lawyers contended.

In a three-page letter to House Minority Leader Nancy Pelosi, D-Calif., Attorney General Jeff Sessions acknowledged "the Executive Branch has a longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense".

And though the federal government will apparently no longer defend a pillar of the law, a group of left-leaning states have stepped in to back it in court.

These two provisions, along with rules that allow children to stay on their parents' health plan until they are 26 years old, have proven popular with Americans.

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