The president past year issued an executive order directing federal agencies to make it easier to buy two alternatives to Affordable Care Act plans.
Besides urging nullification of the insurance-buying mandate itself, the new government position argued that two of the most popular features of the ACA must fall along with it: the requirement that insurance companies can not deny health insurance to individuals because of existing or pre-existing medical conditions, and the requirement that they can not charge higher insurance premiums based on existing or pre-existing conditions.
The decision, announced in a filing in a federal court in Texas, is a rare departure from the Justice Department's practice of defending federal laws in court. Now they have a new talking point, and they lost no time testing it.
"The Justice Department has an entrenched, long-standing and bipartisan commitment to defending congressional statutes if reasonable arguments can be made in their defense", he wrote for the Yale Journal on Regulation in March. HHS and Treasury administer the health law's coverage and subsidies.
The lawsuit could easily go all the way to the Supreme Court before there is a resolution, which could take years. But the uncertainty it creates in the meantime could rattle the law's insurance marketplaces just as insurers are starting to file rate requests for next year. "Picking this fight going into the summer of an election year is mind-boggling".
Many health care experts disagree with that position.
"This lawsuit is less about altering the law and more about blowing it up", Levitt said. A December 2016 poll by the nonpartisan Kaiser Family Foundation found that 75 percent of Democrats and 63 percent of Republicans approved of the law's provision prohibiting insurance companies from denying coverage based on a person's health status or medical history.
Republicans on Capitol Hill had no advance warning that the administration was going to assert that protections for people with preexisting conditions is unconstitutional - a position that defies President Donald Trump's promises to maintain those protections.
But Democrats were already pouncing.
U.S. Rep. John Faso, R-Kinderhook, said those with pre-existing conditions should not be denied coverage, but the ACA has "failed to deliver on its promise to reduce costs".
Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate previous 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".
"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. The court said that while this "individual mandate" exceeded Congress' power to regulate commerce, it could be upheld as an exercise of Congress' taxing power.
The federal lawsuit hinges on the ACA's individual mandate, or the requirement to get health coverage or pay a penalty. The government has essentially pivoted from defending the law to agreeing with the states that the court should demolish it.
Nicholas Bagley, a professor at the University of Michigan Law School who had been a Justice Department lawyer, says DOJ's move is troubling.
Attorney General Jeff Sessions said in a letter to Congress on Thursday 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.
The administration's decision also is likely to further roil insurance markets that are seeing very large premium increases, fed in part by other moves by the Trump administration to loosen insurance regulations.
Epilepsy, cancer, diabetes, lupus, sleep apnea, and pregnancy are all examples of pre-existing conditions. "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".
Many advocates spoke out against the Trump administration's stance on the law's consumer protections. "The ACA is the law of the land and DOJ should defend it", Sen.
"There is no doubt that Republicans are responsible for the rising cost of healthcare premiums and the high likelihood that many will no longer be able to afford basic care at all, and they will face serious blowback in the midterms", the House Democrats' campaign operation said in a statement. "This is a sad moment".
But Justice Department lawyers do argue that with no penalty for not having coverage, the federal government can not make health insurers cover sick consumers or prohibit insurers from charging sick consumers higher premiums, as was routinely done before the health care law was implemented.
As many as 130 million adults under age 65 in the USA have pre-existing conditions that could result in their not being able to get insurance coverage in the private market, according to the Department of Health and Human Services.
Three provisions of the Affordable Care Act are unconstitutional and therefore not defensible in court, the Justice Department said. Andy Slavitt, who led the Centers for Medicare and Medicaid Services under President Barack Obama, called the action "the biggest health care news of the year" on Twitter.
Some Democratic politicians didn't waste much time.
The Texas case will be decided first by O'Connor, a conservative appointee of President George W. Bush.
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