GOP risks fallout from Justice Department move on health law

Donald Trump

"Tonight, as the president and his administration launch their most risky 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.

One might find it odd that the Department of Justice is agreeing that parts of a major law are unconstitutional. "Congress needs to work in a bipartisan manner to develop a solution that covers pre-existing conditions and makes health care more affordable and accessible for every American". For instance, in 2012 the Obama Justice Department said it would not defend the Defense of Marriage Act, which legally defined marriage as a union between a man and a woman for federal purposes. "Our Constitution requires the executive branch to faithfully execute the laws passed by Congress", they wrote in a statement.

Attorney General Jeff Sessions highlighted the two provisions in a letter to House Speaker Paul Ryan.

"I didn't vote for the health care bill", he said. "I think what they're doing is wrong, I think their attempts to overturn the Affordable Care Act have been wrong, but look, they're the majority, they set the schedule".

On Thursday night, the DOJ declined to defend ObamaCare against a lawsuit filed by Texas and 19 other GOP-led states, arguing that the law is unconstitutional.

The states argue that now that Congress repealed the penalty for not having coverage in the tax bill a year ago, ObamaCare's individual mandate can no longer be upheld as a tax, and that it therefore should be invalidated.

However, the Trump administration believes the provision of the ACA guaranteeing affordable rates to those with pre-existing conditions must be thrown out with the individual mandate.

What do other states say?

The Trump administration's Department of Justice has just filed a brief saying so in a suit by several states that aims to take down the whole program.

In the past, polls have found that both Republicans and Democrats favor protecting coverage for the tens of millions of Americans with pre-existing conditions.

Though the lawsuit has a long path before it, Democrats and their allies are seizing on the administration's stance as a ready-made attack line as they try to retake the House in November.

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Q: Who will defend the law now? The move means insurers could decide to deny coverage because of pre-existing conditions.

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.

More than one in four adults under the age of 65 have existing medical conditions, according to Kaiser Family Foundation.

People who buy their own insurance, usually because they are self-employed or don't get coverage through their jobs or the government, would be vulnerable.

According to the Los Angeles Times, the practical effect of the move may be "relatively minor" as the states' legal challenge "is widely viewed as a long shot that stands little chance of threatening the 2010 law".

The Department of Justice said Thursday that it will not defend the constitutionality of key provisions of the Affordable Care Act in a lawsuit now underway in Texas.

If the judge buys the administration's argument, and if his ruling is upheld on appeal, 52 million Americans with preexisting conditions could face denial of coverage or higher premiums. John McCain's dramatic "thumbs down" vote last July, the Trump administration has taken other steps that Obamacare advocates say weaken the law. The second, called community rating, prevents carriers from charging more to those who are sick or had conditions in the past.

More recently, the administration also sought to loosen rules on short-term health insurance plans that are less expensive but don't carry the same consumer protections as Obamacare plans. Partly that's because those consumer protections also raise premiums across the board, as the cost of covering the sick is spread among all customers, including healthier people who previously benefited from lower rates. 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.

So they have an absurd legal theory in this case, no policy theory of how what they're doing will actually make things better, and no political theory about how this will help them.

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