Trump administration won't defend ACA in case brought by GOP states

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Even President Donald Trump called it one of the law's "strongest assets" during an interview with "60 Minutes" shortly after he won the election.

"In refusing to follow bipartisan tradition and defend the ACA in the USA federal court system, the Trump administration is nakedly admitting that it wants to eliminate protections for people with pre-existing conditions, breaking a promise that the president has made time and again", said Topher Spiro, vice president of health policy at the Center for American Progress.

Texas and its allies have asked the court, in Texas et al. v. U.S. et al. But the lawsuit argues that since the mandate can no longer raise any revenue, the mandate itself is now unconstitutional - and so is the entire ACA.

Until Thursday's filing, the Trump administration had not indicated its position on either this latest lawsuit or the Republican states' effort to block the law while the case moved along.

Nevertheless, the Justice Department's position did not go quite as far as the Texas suit.

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. However, the Trump administration contends the individual mandate only becomes unconstitutional as of 2019, calling for a declaratory judgment from the court on the constitutionality but a denial of a preliminary injunction for the plaintiffs.

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In that scenario, other ACA provisions would stay in place.

Back when Republicans were trying to come up with a way to repeal the Affordable Care Act, they quickly realized that while most Americans had only a vague sense of what was in the law, there were parts of it that were extraordinarily popular.

Parts of the package created the ACA public exchange system and set underwriting and benefits rules for health coverage.

Republicans are divided between conservatives who had vowed to eliminate the law and moderates, some in tough races, who want to preserve the popular protections for people who are sick.

Once the heart of the ACA - the individual mandate - is declared unconstitutional, the remainder of the ACA must also fall... without any accompanying exercise of Congress's taxing power, which the Supreme Court already held that Congress has no authority to enact. 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.

In 2012, the U.S.

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Typically, the department defends federal laws in court. However, following the passage of the Tax Cut and Jobs Act of 2017 (TCJA) [text, PDF], the tax penalty would not be imposed as of 2019.

But that mandate was crucial to persuading insurers to offer plans under the ACA. In this case, California is leading a group of Democrat-led states in defending the law. In it, the states deem the entirety of Obamacare and its regulations invalid. The court ruled that the individual mandate was unconstitutional under Congress's Commerce Clause power as Congress can not compel individuals to participate in an area of commerce.

Attorney General Jeff Sessions said the Justice Department would not defend the preexisting-conditions provision or the provision allowing insurance companies to impose discriminatory pricing.

While Justice Department attorneys often advocate for laws they may personally disagree with, those three civil servants instead made a decision to exit from the case, which Bagley described as "almost unheard of". O'Connor has told those states they can submit pleadings to the court along with the other parties.

Though Republicans loathe the 2010 law, many of them have pushed for market-oriented solutions that allow sicker Americans to obtain insurance without facing sky-high prices. The individual mandate required most Americans to maintain minimum insurance or to pay a tax penalty. In the meantime, the existing law will likely remain.

Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate past 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".

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"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", said Matt Eyles, the president and chief executive of America's Health Insurance Plans, a trade group for insurers.