The Affordable Care Act has already survived multiple legal challenges, including two cases that went to the U.S. Supreme Court, which seemed to effectively end this aspect of the debate.
Or so we thought. When Republicans approved their regressive package of tax breaks for the wealthy and big corporations, they simultaneously repealed the ACA’s individual mandate penalty. And that, in turn, gave several far-right attorneys general an idea: they could once again file suit against “Obamacare,” arguing that the penalty-free mandate is unconstitutional, and given the mandate’s importance to the system, the entire law should be torn down.
Late yesterday, the Trump administration endorsed this position. The Washington Post reported:
The Trump administration said Thursday night that it will not defend the Affordable Care Act against the latest legal challenge to its constitutionality – a dramatic break from the executive branch’s tradition of arguing to uphold existing statutes and a land mine for health insurance changes the ACA brought about.
In a brief filed in a Texas federal court and an accompanying letter to the House and Senate leaders of both parties, the Justice Department agrees in large part with the 20 Republican-led states that brought the suit. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law will not be valid, either.
Attorney General Jeff Sessions added that the Justice Department adopted this position “with the approval of the President of the United States.” Imagine that.
There are a few ways to look at the Trump administration’s move, which I consider to be a Trifecta of Wrong.
1. It’s wrong on legal grounds. As Vox noted, “Many legal scholars have long thought the lawsuit, first filed in February, is spurious and that higher courts – up to and including the Supreme Court, which has upheld Obamacare against existential legal threats on several prior occasions – would not take it seriously.”
But just as importantly, many in legal circles were shocked last night when the Justice Department sided with the Republican attorneys general because, in nearly every instance, the Justice Department defends existing federal law, regardless of the political party in power at the time. The American system will struggle mightily if the U.S. government only defends laws the sitting president happens to like.
Indeed, it’s worth emphasizing that three career Justice Department attorneys who’d been working on this case “abruptly withdrew from the litigation” late yesterday, apparently unwilling to go along with Donald Trump’s and Jeff Sessions’ radical scheme.
The University of Michigan’s Nicholas Bagley explained, “You take your name off a brief because you believe the arguments being made are not good-faith arguments,” Bagley said.
2. It’s wrong on policy grounds. Though Republicans insist they approve of the Affordable Care Act’s consumer protections, including protections for those with pre-existing conditions, the Trump administration’s new brief intends to scrap those benefits.
Making matters worse, the lawsuit and the Trump administration’s support for it create new uncertainties in the health care marketplace, just as insurers set rates for 2019. In practical terms, more GOP-imposed uncertainty may mean more price hikes for consumers.
3. It’s wrong on political grounds. In case Republicans haven’t noticed, the health care law’s consumer protections, including protections for those with pre-existing conditions, are very popular. Health care is already the top issue for voters this election year, and Trump’s Justice Department just told the nation that it and its Republican pals are taking dramatic steps to undermine American families’ health benefits that the public already likes and has come to count on.
The case is currently pending in Texas – chosen specifically to maximize the right’s odds of success. It’ll take months before there’s a ruling, and many more months for the case to work its way through the appeals process.