Justice Department takes aim at heart of health law

United States District Court for the Northern District of Texas- Fort Worth

"United States, the department will not defend the constitutionality of [the individual mandate], and will argue that certain provisions of the Affordable Care Act (ACA) are inseverable from that provision", U.S. Attorney General Jeff Sessions wrote in a letter to House Speaker Paul Ryan (R-Wis.) explaining his decision.

"It would be essentially a return to what the individual market looked like before the ACA, where insurers would require applicants to fill out long questionnaires about their medical histories, and make decisions based on people's health and how much to charge", said Larry Levitt, a senior vice president at the Kaiser Family Foundation.

And the Justice Department says it agrees with those states, and it will not defend some of the key remaining provisions in the law. Even if the lawsuit stands little chance of success, putting those provisions back in play can create uncertainty for insurers and patients this summer and fall. Now they have a new talking point, and they lost no time testing it.

Asked about the Justice Department move, Jesse Hunt, a spokesman for the National Republican Congressional Committee, spoke instead about the Democrats. It helped expand their risk pools while the law forced them to guarantee coverage to any customer.

The Affordable Care Act has already survived several court challenges, and this latest test of its durability could take months or years to go through the legal system.

Insurers are now in the midst of deciding whether to participate in the individual marketplaces created under the law in 2019 and, if so, what filing rates with state regulators will be.

In a June 2017 poll, Kaiser found that protection for people with pre-existing conditions was an issue with bipartisan support.

Senate Democratic Leader Chuck Schumer of NY urged President Donald Trump to reverse the decision.

Weighing in on a Texas challenge to the health law, the Justice Department argued that legally and practically the popular consumer protections can not be separated from the unpopular insurance mandate, which Congress has repealed, effective next year.

But Democrats were already pouncing. "Pre-existing conditions have gotten to be an issue that people walking on the streets understand;.it's very emotional".

Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate past year, also expressed concern about the administration's new push, saying it "creates further uncertainty that could ultimately result in higher costs for millions of Americans and undermine essential protections for people with pre-existing conditions, such as asthma, cancer, heart disease, arthritis and diabetes". Hunt shifted the focus to Democratic calls for a single-payer system, saying, "Massive tax increases and reduced quality of care are about as popular as its architect: Nancy Pelosi".

"Tonight, as the president and his administration launch their most unsafe sabotage effort yet, we are seeing just how far Republicans are willing to go in their quest to undermine the American health care system", said Brad Woodhouse, campaign director of Protect Our Care, an advocacy group staffed with many Obama administration alums.

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"Zeroing out the individual mandate penalty should not result in striking important consumer protections", the group said. The states argue that after Congress eliminated the penalty for the individual mandate, effective in 2019, as part of last year's tax reform bill, it destabilized other sections of the law. In this case, California is leading a group of Democrat-led states in defending the law.

Attorney General Jeff Sessions said in a letter to Congress that Trump, who campaigned on repealing the law and almost did so his first year in office, approved the legal strategy.

If the administration prevails in the case, the full force of the decision would not hit until after the midterm elections on November 6.

Epilepsy, cancer, diabetes, lupus, sleep apnea, and pregnancy are all examples of pre-existing conditions.

The main trade association for health insurers came out strongly against the administration's position.

In parting company with the challenging states on their demand that all of the ACA be nullified, the Administration document said it was hypothetical speculation whether the entire program would collapse without the individual mandate and the related insurance coverage requirements. "These protections are some of the most popular and commonsense parts of the ACA - this administration is making a big mistake - and I'll fight to make sure these critical protections aren't scrapped".

Before the Affordable Care Act became law, insurance companies routinely declined health insurance coverage to people who had ongoing medical conditions or recent illnesses. "The ACA is the law of the land and DOJ should defend it", Sen.

"I have always favored coverage for preexisting conditions and will continue to do so", Lance said, adding he would urge the administration to back off their new legal stance.

"And the Department of Justice is ending the lawlessness that too often took place under the previous administration", Sessions said, according to the prepared remarks.

Despite the Justice Department position, the Health and Human Services Department has continued to apply the health law.

"Withdrawing from a case en masse like this, right before the brief is filed, is unheard of", noted Nicholas Bagley, a former Justice Department lawyer who now teaches at the University of Michigan Law School. "Such withdrawals are exceedingly rare - typically only when the argument is indefensible, as they are here".

Donald Verrilli Jr., President Barack Obama's top Supreme Court lawyer who defended the law, called the decision "a sad moment".

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