Justice Dept. Says Crucial Provisions of Obamacare Are Unconstitutional

Justice Dept. Says Crucial Provisions of Obamacare Are Unconstitutional

Supporters of Sen. Bernie Sanders, I-Vt., listen as he speaks during a "Care Not Cuts" rally in support of the Affordable Care Act, Sunday, July 9, 2017, in Covington, Ky.

An obscure district court lawsuit over the Affordable Care Act became a potent threat to one of the law's most popular provisions late Thursday, when the Justice Department filed a brief arguing that as of January 1, 2019, the protections for people with pre-existing conditions should be invalidated.

"The DOJ agrees with Texas that the individual mandate is unconstitutional once the tax penalty was zeroed out, and if it is struck down, the guaranteed issue and community ratings provisions go with it", said Jost.

Without the mandate, insurers have warned of premium price hikes for 2019, and states have already reported increases, as payers fear healthy individuals will flee the ACA market, leaving a higher-cost, riskier population.

Texas and its allies want the court to then use the nullification of the individual mandate to kill the ACA as a whole, based on the proposition that killing any part of the ACA will kill all of the ACA. It helped expand their risk pools while the law forced them to guarantee coverage to any customer.

According to, a pre-existing condition is a health problem a person has before enrolling in a new health care plan.

House Republicans said Friday they aren't sweating the Trump administration's refusal to defend Obamacare against a lawsuit that could nix popular health care protections, saying the case is in its infancy and they acquitted themselves by offering an alternative health plan previous year.

In a brief filed Thursday, the Justice Department sided with Texas and a coalition of other Republican-led states that had filed a suit challenging the constitutionality of Obamacare.

According to health-policy experts, a court ruling in favor of the suing GOP states and the administration would trigger what one called "immediate chaos" in the law's insurance marketplaces created under the law.

Chief Justice Roberts, who wrote the majority opinion in NFIB v. Sebelius, rejected the Obama administration's claim that Congress could impose the individual mandate pursuant to the Constitution's Commerce Clause.

In court papers, lawyers for Texas asked a Texas judge to hold that the ACA is unlawful and enjoin its operation. That's not exactly what the attorneys general were arguing, but that's what the Justice Department position is. These include a "ban on insurers denying coverage and charging higher rates to people with pre-existing health conditions". Their lawsuit has contended that the entire ACA program can not function as an economic matter without the assurances of adequate numbers of people buying insurance.

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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Epilepsy, cancer, diabetes, lupus, sleep apnea, and pregnancy are all examples of pre-existing conditions.

The same report estimates 391,000 Utahns have pre-existing conditions that could affect their coverage eligibility. The Kaiser Family Foundation puts the number at about a quarter of the country's under-65 population. Of course, not all of them buy coverage on their own. "The last time the health insurance business worked right was before the federal government got involved".

These two provisions, along with rules that allow children to stay on their parents' health plan until they are 26 years old, have proven popular with Americans. What about next year? Health insurers are now deciding whether to sell coverage in the individual market in 2019 - and what they're going to charge.

"We agreed as a nation to not go back there", Stanford said, after the Affordable Care Act passed.

But others say the legal brief may have minimal impact next year on premiums.

ROVNER: Well, one of the reasons it's happening - say the insurers, who are filing their rates now for next year - is because they took away this penalty for people who don't have insurance.

In 2015, the court ruled that Congress did not intend to provide financial aid exclusively for premiums to individuals in states that operated their own insurance exchanges.

Other legal observers point out that's not how the lawmaking process works. "Nothing yet", wrote Tim Jost, emeritus professor of law at Washington & Lee University, in Lexington Va., in a blog post for the Commonwealth Fund. "Congress made that choice".

However, the federal support for the states' lawsuit is unusual, since the Justice Department typically defends existing law.

Texas and other states that oppose the ACA have responded by filing a suit in the U.S. District Court for the Northern District of Texas. "The Department will not defend the constitutionality" of the Affordable Care Act. Even if the lawsuit stands little chance of success, putting those provisions back in play can create uncertainty for insurers and patients this summer and fall.

MacArthur's district is a target for Democrats attempting to flip at least 23 House seats the party needs to take control of the chamber after the November election. "Their job is to defend federal programs", Bagley says, noting that he has not talked with any of them about the case. We also agree that the Affordable Care Act's (ACA) provisions affecting Medicaid, Medicare Advantage, and Medicare Part D should remain law. "That's as flagrant a violation of the President's constitutional duty to take care that the laws are faithfully executed as you can imagine".

This story was produced by Kaiser Health News, which publishes California Healthline, a service of the California Health Care Foundation.