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Michael Petruzzelli

, National Council for Behavioral Health

Trump Administration Declines to Defend ACA, Urges Repeal of Pre-existing Conditions Protections

June 14, 2018 | ACA | Comments
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The Department of Justice (DOJ) has declined to defend the Affordable Care Act (ACA) from a challenge by 20 GOP-led states, and instead asked a Texas court to invalidate many of the law’s key insurance reforms, including its prohibition against discriminating against persons with pre-existing conditions. The Texas court will likely render a decision in the coming months. Legal experts suggest that this decision does not put the law into immediate jeopardy as any decision handed down by the court will likely be challenged and appealed to the Supreme Court.

BACKGROUND

In the case, the 20 state officials argued that the Supreme Court’s 2012 decision to uphold the individual mandate relied on Supreme Court Chief Justice John Roberts’ belief that it was constitutional under Congress’ taxing authority. It was argued that since Congress removed the penalty for failing to get coverage in the Tax Cuts and Jobs Act of 2017, there is no longer a tax so the mandate is unconstitutional. From there, it was argued that the mandate cannot be detached from other provisions in the health law and therefore the entire ACA should be repealed.

“The individual mandate is untethered to any source of constitutional authority,” the Administration wrote in its filing. “In sum, once the associated financial penalty is gone, the ‘tax’ saving construction will no longer be fairly possible and thus the individual mandate will be unconstitutional.”

REMOVING PROTECTIONS FOR THOSE WITH PRE-EXISTING CONDITIONS

The Department of Justice, in its filing, reasoned that only the law’s key provisions – like protections for those with pre-existing conditions – are inseverable from the individual mandate and should thus be stricken down by the Texas court. The repeal of protections for those with pre-existing conditions has been a focal point of ACA repeal efforts by the Trump Administration and the 115th Congress.

The filing caught some on Capitol Hill by surprise, with few congressional Republicans rushing to defend the Administration’s decision. Congressman Tom MacArthur – a key author of the House’s ACA repeal legislation, the American Health Care Act said, “I introduced [an amendment in 2017 that] would guarantee coverage for pre-existing conditions. I think that’s a pretty essential pact with the American people. We need to let them go forward and see if it goes anywhere. Right now, they’ve simply made an appeal to the court.”

NEXT STEPS

The Texas court will continue to review filings from other interested parties and will likely render a decision sometime later this year. Legal experts suggest that this case, regardless of its Texas outcome, will likely end up being moved up for consideration by the Supreme Court.