Department of Justice Argues Against ACA Essential Health Benefits

Faith Castro
June 12, 2018

One example, unfolding right now in the midst of the president's various rhetorical wars - with our Group of Seven partners, with the special counsel, with his own attorney general - is the administration's remarkable move not to defend the constitutionality of key parts of the Affordable Care Act.

The Justice Department concurred, saying the court should consider ordering that as of January 1, two popular parts of the law will be invalid: that people with preexisting conditions must receive coverage, and that they can not be charged more than healthier consumers. Julie, thanks so much for being with us. The group contends that the individual mandate is unconstitutional and unenforceable since the tax penalty is $0 by 2019. Their argument begins with the fact that, when the Supreme Court upheld the individual mandate, it did so in a very unusual way. (Case Number: 4:18-cv-00167-O) to grant a preliminary injunction that would nullify the ACA individual mandate. Some are focused on the odd circumstance that Justice is arguing that the law is unconstitutional.

The provisions DOJ says should be invalidated are central to the ACA and would gut protections for those with pre-existing conditions. It requires insurance companies to cover people with preexisting conditions - charge them the same rates as everybody else?

ROVNER: Yes, it does.

The states are now arguing that once Congress repealed the tax penalty for the individual mandate in the 2017 law, no more constitutional authority exists for Congress to keep the individual mandate in place.

"If the Justice Department can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books", wrote Bagley.

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.

"I find it impossible to believe that the many talented lawyers at the department could not come up with any arguments to defend the ACA's insurance market reforms, which have made such a difference to millions of Americans", Verrilli said.

ROVNER: Those are the main parts. "Zeroing out the individual mandate penalty should not result in striking important consumer protections, such as guaranteed issue and community rating rules that help those with pre-existing conditions".

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Just hours before the Justice Department officially withdrew from the case, three of the staff attorneys who had been working on it withdrew. "In practice, this likely would exclude from the commercial health insurance markets individuals with preexisting conditions, individuals with illnesses that are expensive to treat, and many individuals over the age of 50 or 55".

ROVNER: Well, immediately, of course, it wouldn't.

Update: The article clarified the legal arguments presented by the Department of Justice. Obviously, this is a lawsuit, and it could take months or even years to work its way through the courts.

"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.

"We need to let that go forward and see if it goes anywhere", said Rep. Tom MacArthur, R-N.J. Why is that happening? But if you don't, nothing happens to you. The insurers say that healthy people will probably opt out of having insurance. "Insurers hate uncertainty, and they respond to it by hedging their bets and increasing premiums", says Larry Levitt, senior vice president at the Kaiser Family Foundation.

More recently, the White House and Department of Health and Human Services have been working to make it easier for consumers to buy relatively cheap health plans that exclude some of the benefits the ACA requires.

"Otherwise individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else", Sessions said in his letter to Pelosi.

SIMON: And you expect this to continue? But in every state, insurers have said that's the reason they're raising their premiums.

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