Congress Couldn’t Kill Obamacare. But Trump Is Still Trying. (Updated)

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Congress Couldn’t Kill Obamacare. But Trump Is Still Trying. (Updated)

Jessica Mason Pieklo

Obamacare's protections for those with pre-existing conditions are overwhelmingly popular, with 70 percent of respondents to a recent poll supporting that part of the health-care law.

UPDATE, March 2, 2020, 9:46 a.m.: The U.S. Supreme Court on Monday announced it will hear arguments in a challenge to the constitutionality of the individual mandate of the Affordable Care Act. A date for hearings has not been set.

The Trump administration told a federal court on Thursday that it wouldn’t defend key provisions of the Affordable Care Act (ACA), saying in a brief that it believed the individual mandate is unconstitutional and inviting the court to invalidate key portions of the law, such as the pre-existing conditions protections.

Thursday’s filing represents not just an about-face by the Trump administration from the Obama administration’s defense of the law from conservative legal attacks; it shows that the U.S. Department of Justice (DOJ) has been co-opted by ideologues who share the administration’s contempt for the rule of law. The administration’s arguments are so radical that, just before the brief was filed, several career attorneys in the Justice Department working on the case filed a motion to withdraw, refusing to sign their name to the arguments the administration was advancing.

One of the attorneys who remains on the case, Chad Readler, was nominated by the Trump administration to the Sixth Circuit Court of Appeals on Thursday.

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The filing accompanied a letter sent by the DOJ to U.S. House of Representatives and U.S. Senate leaders of both parties detailing the administration’s position.

The filing came in a lawsuit brought by the state of Texas and a handful of other Republican-led states. Those states argue that once Congress eliminated the penalty for failing to comply with the ACA’s individual mandate in its tax bill last year, the rest of the law is no longer constitutional.

On Thursday the Trump administration told the federal court it largely agrees with Texas’ position. In its brief the Justice Department argues two main points. First, it claims that the individual mandate, which the U.S. Supreme Court upheld in 2012, is unconstitutional. Second, the administration argues that because the individual mandate is unconstitutional, other key provisions of the law should be struck down on the ground that they can’t be severed, or removed, from the unconstitutional mandate.

The provisions the Justice Department wants the court to invalidate are central to the ACA, or Obamacare, and would gut protections for those with pre-existing conditions. The first is the “guaranteed issue” requirement, which mandates insurers offer coverage to everyone, regardless of their medical history.

The second is the community rating provision. This portion of the law prohibits insurers from setting premiums based on a person’s health history.

Obamacare’s protections for those with pre-existing conditions are overwhelmingly popular, with 70 percent of respondents to a recent Kaiser Family Foundation poll supporting that part of the health-care law. Eighty-four percent of self-identified Democrats backed the provision, along with 59 percent of Republican respondents.

Thursday’s filing doesn’t put the law in immediate danger. Several states, including California, have stepped in to defend it from conservative attacks, and the court must still rule on the request by Texas and the Justice Department to block the law.

But Texas and the other conservative states filed their lawsuit in the conservative northern district of Texas, where the case has been assigned to Reed O’Connor: a judge who has happily ruled against the ACA in the past, including issuing a nationwide injunction to block Section 1557, a key anti-discrimination provision in the law.

A decision in the case could still be months away. In the meantime, the ACA remains in effect.