On June 7, 2018, Trump’s Department of Justice filed a brief in Texas v. United States supporting the plaintiff’s argument that critical provisions of the Affordable Care Act, including the provision that requires insurers to cover people with pre-existing conditions, are unconstitutional. This is the latest example of health care sabotage from the Trump administration.
Congressional Republicans failed to repeal the ACA last year because of your advocacy and energy—so now, the Trump administration is trying to go around you to repeal the law by using judicial tactics. Read on to learn more about this latest development.
What is the case about?
In February 2018, Texas and 19 other states filed a lawsuit against the federal government arguing that, because the Tax Scam eliminated the penalty for people who don’t have insurance, major parts of the ACA are no longer workable and should be struck down. Their argument is essentially as follows:
- The individual mandate (which imposes a financial penalty on people who don’t have health insurance) was only ruled constitutional by the Supreme Court in 2012 because it was a tax.
- When Republicans passed the Tax Scam in late 2017, the bill included a provision that reduced the fine from the individual mandate to $0—meaning it “can no longer fairly be described as a tax,” according to Trump’s DOJ. Therefore, they say, the individual mandate is unconstitutional.
- Because the mandate is central to many provisions of the ACA, including the requirement that insurance companies cover people with pre-existing conditions, if it is unconstitutional, the rest of the law must be unconstitutional as well. (This is a legal concept known as “inseverability.”)
The case could still be thrown out because the plaintiffs lack standing to bring a suit, or it could be defeated on the merits because their legal argument is not compelling. However, now that the Trump administration has endorsed this position, the plaintiffs have the weight of the Department of Justice behind them—and Trump has made it clear he doesn’t care about his constitutional duty to “take care that the laws be faithfully executed” if it means sabotaging our health care system.
What is the Trump administration doing that’s unusual?
Typically, the Department of Justice will defend laws that are on the books if there is a serious argument to be made in their defense. The highest profile departure from this principle was when the Obama administration declined to defend the Defense of Marriage Act in court in 2011—but in that case, there was a fundamental question about the constitutionality of laws that discriminate against same-sex couples. This case is not one that raises fundamental Constitutional questions; it is a case about whether the individual mandate is severable from the rest of the ACA.
By taking the plaintiff’s side in this case, the Trump administration is openly flouting the law to achieve a political goal. While DOJ does not argue that the entire ACA should be invalidated—they argue that only the “guaranteed-issue and community-rating provisions” should be ruled unconstitutional now that the mandate is gone—it is still a serious departure from precedent for Trump and Jeff Sessions to declare that they won’t defend in court parts of a law to which they are politically opposed.
This decision is so unusual, and the reasoning behind it so poor, that three career lawyers at DOJ took themselves off the case rather than be part of the administration’s decision to adopt this position. This doesn’t mean the ACA is without defenders; seventeen states, including California, have already stepped in to defend the ACA from this latest assault.
What are the implications for our health care system?
The administration’s position is an attack on people with pre-existing conditions. The provisions that the administration wants to invalidate—guaranteed issue (which requires insurers to sell health insurance to people with pre-existing conditions) and community rating (which requires insurers to charge people with pre-existing conditions and those without the same price for insurance)—form the foundation of the ACA’s protection for people with pre-existing conditions.
If Trump and Sessions have their way, 130 million Americans with pre-existing conditions will be exposed to massive price hikes as a result—and many could lose their ability to buy health care coverage at all. These Americans live in every state and Congressional district, and the conditions that would now expose them to the risk of losing their coverage include drug abuse, mental health disorders, and more.
This case is the latest evidence that sabotage is the Trump administration’s number one health care priority. Since the moment he took office, Trump has made a priority of dismantling the ACA; the only way to ensure our health care system is safe is to elect MoCs who will fight back and protect it.