Attorney General Jeff Sessions will not defend Affordable Care Act's individual mandate

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The Trump administration declared that it no longer will defend the Affordable Care Act from a challenge filed by 20 states because it agrees that the law's individual mandate is unconstitutional and that key parts of the act - including the provisions protecting those with pre-existing conditions - are invalid.

If a federal judge in Texas agrees with the Department of Justice's (DOJ) move to not defend the constitutionality of the Affordable Care Act (ACA), millions of Americans could lose their healthcare coverage or face higher premiums for having preexisting conditions, a legal professor wrote Friday in a blog post for The Commonwealth Fund. Those states argue that once Congress eliminated the penalty for failing to comply with the ACA's individual mandate in its tax bill previous year, the rest of the law is no longer constitutional.

The states are now arguing that once Congress repealed the tax penalty for the individual mandate in the 2017 law, no more constitutional authority exists for Congress to keep the individual mandate in place.

But Congress repealed the tax penalty for people without insurance past year, and the individual mandate can no longer be described as a tax when the repeal takes effect in January, the brief says. In 2012, the Supreme Court held that the insurance mandate was unconstitutional as a nationwide mandate.

If the court takes that action, "the ACA's provisions containing the individual mandate as well as the guaranteed-issue and community-rating requirements will all be invalid beginning on January 1, 2019", the department lawyers write in a memorandum addressed to the court. He said the department refused to defend only the preexisting-conditions provision as well as one forbidding insurers from charging people in the same community different rates based on gender, age, health status, or other factors.

Before the Affordable Care Act became law, insurance companies routinely declined health insurance coverage to people who had ongoing medical conditions or recent illnesses.

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But Rep. Steve King, Iowa Republican, said it's not unprecedented for the Justice Department to refuse to defend a law it views as unconstitutional, so he doesn't see their decision as problematic.

Nevertheless, U.S. Sen. Susan Collins, R-Maine, criticized the Trump administration in a statement. Andy Slavitt, who ran the Centers for Medicare and Medicaid Services under President Obama, tweeted that the Justice Department's decision is the "biggest health care news of the year" and a blow to public health. One of their replacements is Brett Shumate, described by the Times as "a Trump administration political appointee in the civil division of the Justice Department who has played a leading role in defending the White House in a range of lawsuits". "Congress in 2010 may have thought that a mandate may have been an essential component of the ACA, but a subsequent Congress indicated otherwise by eliminating the penalty without altering the other parts of the law".

ROVNER: Yes, the individual mandate itself is constitutional because it's a tax.

"This suit comes as insurers are proposing individual market premiums for 2019". But, he said, he had concluded that "this is the rare case where the proper course is to forgo defense" of the individual mandate. Even Republicans who've complained about Obamacare have been loath to undo the protections for people with preexisting conditions who are not covered by large employers' health plans. "Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019". They must grapple with how to protect the state's insurance market amid a continued assault against the federal health law.

Given the excitement for judicial activism building among conservatives, the Trump administration may have more than a 50 percent chance of success.

Mr. MacArthur said it would be hard for Congress to revisit the brutal health care fight, although it's unclear if the lawsuit will get "any legs under it". In May, the court allowed them to “intervene” in the case. United States. Obama's last CMS administrator Andy Slavitt tweeted the following false claim: "The Trump DOJ tonight just told the courts to dismantle pre-existing conditions protections and other consumer protections". Under normal circumstances, the federal government would defend the law.

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