The Trump administration last Thursday officially threw its support behind a new, seemingly far-fetched legal challenge to the Affordable Care Act, arguing that the law’s protections for people with pre-existing conditions are unconstitutional.
The lawsuit, now before a federal district judge in Texas, comes from officials in 20 conservative states. And its prospects for success look slim. The Supreme Court has already rejected two legal challenges to the law, the second on a 6-3 decision that came with a strongly worded ruling from Chief Justice John Roberts.
State attorneys general will step in to defend the law from this new challenge. And they will not have difficulty making their case.
The lawsuit’s key argument is that Congress intended for the pre-existing condition protections to work in tandem with the law’s individual mandate, the provision that people have insurance or pay a penalty. Now that Congress has decided to zero out the penalty, as Republicans did last year as part of the 2017 tax cut, the pre-existing conditions have to go, too.
That would mean insurers would no longer be subject to “guaranteed issue” (a requirement that they sell policies to anybody, regardless of medical status) or “community rating” (a prohibition on charging higher premiums to people with pre-existing conditions).
The problem, many scholars have noted, is that Congress has taken action since it passed the Affordable Care Act. Specifically, it left pre-existing protections in place even as it reduced the individual mandate penalty to zero. Regardless of whether that was a smart policy move, it is clearly what Congress intended ― and Congress gets to make those kinds of decisions.
“If Congress had wanted to repeal the guaranteed issue and community rating provisions of the law, it would’ve done so ― but it didn’t,” Nicholas Bagley, a law professor at the University of Michigan, told HuffPost.
“The fact that Congress separately repealed the tax makes the argument here not just extravagant but preposterous,” said Michael Dorf, a constitutional law expert at Cornell University.
Even some lawyers who supported previous lawsuits against the Affordable Care Act, such as Ilya Solmin from George Mason University Law School, think this latest lawsuit is weaker.
“There is a big difference between a court choosing to sever a part of a law, and Congress doing so itself,” Solmin wrote at the Volokh Conspiracy blog. “And in this case, Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place.”
All of that suggests there’s a good chance the lawsuit never even gets to the high court.
But the administration’s decision could be significant for two other reasons.
One is that it deviates from the usual Justice Department tradition under which its lawyers defend even laws that the sitting president and his party oppose. It’s part of the president’s duties, under Article II of the Constitution, that “he shall take care that the laws be faithfully executed.”
On Thursday, three career attorneys from the Department of Justice asked to remove themselves from the case. That is highly unusual, leaving legal observers like Bagley to speculate that the lawyers may have felt they could not in good conscience sign onto the brief.
The Trump administration’s move is not without precedent. In 2011, President Barack Obama’s Justice Department declined to defend the Defense of Marriage Act (DOMA) in court. Critics at the time warned that failing to defend an existing law might set a bad precedent, and some of Obama’s own advisers opposed the decision.
The other significance of Thursday’s action is not legal. It’s political.
The Trump administration’s contempt for Obamacare is no secret. And although the president and his supporters have sometimes said they believe in protections for people with pre-existing conditions, they have repeatedly taken action ― like trying to pass repeal legislation or rolling back the Affordable Care Act’s regulations on what plans must cover ― that seek to undermine or obliterate those protections entirely.
Those GOP efforts sparked a tremendous backlash. But the effort to get a repeal bill through Congress ended in the fall. It’s possible that those memories have faded from public consciousness a bit, and that may even help explain Trump’s gradually, if modestly, improving approval numbers in the polls.
The decision to jump into this health care case, on the side of the plaintiffs out to gut protections for people with pre-existing conditions, could put the issue back in the public eye. That could work well for Democrats, who have made clear they believe health care is a winning political issue for them again.
“After years of Republicans trying to repeal the protections stopping insurance companies from denying coverage to people with pre-existing conditions, now Trump says the protections are unconstitutional. Republicans always had to defend those votes in this election, but now they have to defend his decree too,” said Jesse Ferguson, a Democratic strategist who works with health care advocacy groups.
Spokespersons for the Democrats’ House and Senate campaign committees made clear that Republicans will have to defend this decision and that the GOP “will face serious blowback in the midterms.”
The move could be particularly important in two key Senate races. The original brief in the lawsuit included, as co-counsel, a pair of state attorneys general: Josh Hawley of Missouri and Patrick Morrisey of West Virginia.
Hawley is challenging Democratic Sen. Claire McCaskill, while Morrisey is challenging Democratic Sen. Joe Manchin. Missouri and West Virginia are relatively conservative states, difficult for Democrats to hold, and McCaskill, in particular, is thought to be vulnerable.
But polls have shown protections for pre-existing conditions to be exceedingly popular, even among Republican voters. A chance to show voters that Hawley and Morrisey would get rid of those protections could help keep those two seats in Democratic hands.
-Jonathan Cohn
My take: I want you to read this again.
"The Trump administration on Thursday officially threw its support behind a new, seemingly far-fetched legal challenge to the Affordable Care Act, arguing that the law’s protections for people with pre-existing conditions are unconstitutional."
You do understand, you do get this, correct? The Trump Administration, Trump Administration. This president will undercut protections for people that will cause loss of life for many in those situations because those serious illnesses will not be followed up on.
All done of course under the cover of the Trump/Kim summit.
This is the kind of president the religious right NOW fawn over and follow in a bee-hive, cult like state. Check it out, see how Republican politicians are scared pitless to differ with Trump on anything because Trump supporters or anyone close to that are now required to fully support Trump summa fidelitatis.
I mean you got to check this out, it's almost like in the eighties when that weird paranoid fear of dissent existed among the right-wing back then during Reagan.
They get in this mental state to some degree by certain politically ideological churches throughout the nation(more than you think) that push it and then mixed with the bee-hive mentality of those in service to money, primarily republicans, it coagulates together into this "you don't say anything negative about great leader" brainlock. WhamO, you got a cult. Very strange, most peculiar mama.
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