DOJ Won't Defend Obamacare in Lawsuit Brought by 20 States

Jim West via ZUMA

Jim West via ZUMA

The brief was filed in Texas v. Azar, a case brought in February by Texas and 19 other Republican-led states.

The Trump administration filed a brief in the case on Thursday, arguing that without the tax to encourage healthy people to sign up, the parts of the law guaranteeing coverage to people with previous health conditions - without charging them higher rates - should be struck down as well.

Insurers, meanwhile, warned that the administration's actions could rock the individual market and could lead to higher premiums, especially for those battling illnesses.

The Department of Justice said Thursday that it will not defend the constitutionality of key provisions of the Affordable Care Act in a lawsuit now underway in Texas. Instead, Justice officials argue in their brief that the ACA's insurance requirement will not become unconstitutional until January, so that "the injury imposed by the individual mandate is not sufficiently imminent" and that the judge could issue a final ruling in the case before then.

The administration says it agrees with Texas that the so-called individual mandate will be unconstitutional without the fine. "As of 2019, therefore, the individual mandate will be unconstitutional under controlling Supreme Court precedent holding that 'the federal government does not have the power to order people to buy health insurance'". The administration's argument would also allow insurers to charge women, older people, and people in certain occupations higher premiums.

Trump and fellow Republicans in Congress have sought to dismantle Obamacare, which sought to expand insurance coverage to more Americans.

Before the Affordable Care Act marketplace launched in 2014, people with chronic diseases who tried to buy their own insurance were routinely denied coverage based on their medical history.

If the court ultimately declared the provisions targeted by the Trump Administration unconstitutional, California would be temporarily cushioned from the effects because there are laws already on the books should the ACA - or its provisions - go away.

Becerra is leading an effort by Democratic attorney generals from others states and the District of Columbia to defend the ACA against that lawsuit. However, if the federal court sides with the plaintiffs, those with pre-existing conditions could once again be denied coverage. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law are not valid either.

But it says the rest of the law, including Medicaid expansion, can remain in place.

Attorney General Jeff Sessions said in a letter to Congress on Thursday that Trump, who campaigned on repealing the law and almost did so his first year in office, approved the legal strategy.

Donald Verrilli Jr, Barack Obama's top supreme court lawyer who defended the law, called the decision "a sad moment".

The Democrats further raised concerns that even if the Justice Department's arguments are unsuccessful, the administration's move could still "raise the cost of health care for most Americans, undermine the economy and weaken our democracy for years to come".

While Justice Department attorneys often advocate for laws they may personally disagree with, those three civil servants instead chose to exit from the case, which Bagley described as "almost unheard of".

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