The Trump administration is asking an appeals court to strike down the entire Affordable Care Act (ACA), a shift from the administration’s earlier stance that had supported some elements of the law in a lawsuit challenging its constitutionality.
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In a brief issued May 1 to the 5th U.S. Court of Appeals, Justice Department attorneys wrote that provisions of the health care law cannot be severed from the whole and thus, the entire ACA should be ruled invalid. The Justice Department did not specify why it changed its position in Texas v. United States, except to say the new opinion came upon further consideration and review of the lower court’s opinion.
Texas v. United States, filed by a group of 18 Republican state attorneys general and two individuals in 2018, centers on whether the ACA should stand if provisions of the law are no longer valid. The plaintiffs argue that, because budget legislation in 2017 zeroed out the penalties associated with the ACA’s individual mandate, the mandate is invalid. If the mandate is severed, the entire ACA should be struck down, the plaintiffs said. The Justice Department declined to fully defend the law and so 16 Democratic state attorneys general intervened to defend the ACA in the case.
In an initial brief, the Trump administration agreed that the mandate was unconstitutional and should be parsed. Attorneys for the administration wrote that, if the mandate is found unconstitutional, the court should also consider finding two other provisions – the guaranteed issue and community rating requirements – of the ACA invalid. Guaranteed issue refers to insurers in the individual market offering coverage to all citizens, regardless of preexisting conditions, while community rating refers to charging equal premiums to every patient, no matter their past health status. At the time however, the Trump administration said the remainder of the ACA can stand without the three linked provisions.
In December 2018, a district court declared the entire ACA to be invalid, a decision immediately appealed to the 5th Circuit by the Democratic attorneys general. The circuit court froze the case in light of the federal government’s partial shutdown at the time. The case remains on hold.
The Trump administration’s new stance that the entire ACA should be declared unconstitutional was widely condemned by Democratic legislators.
“If President Trump wins against health care, families lose,” Sen. Patty Murray (D-Wash.) tweeted May 1. “They’ll lose their health care, lose protections for preexisting conditions, and lose to insurance companies who will have free rein to deny coverage and leave patients to shoulder high costs.”
The White House had not issued a statement about its new position in the case at press time.
In a separate brief filed with the appeals court on May 1, Texas Attorney General Ken Paxton, a Republican plaintiff in the case, reiterated his side’s opposition to the ACA and called for the court to uphold the lower court’s ruling striking down the law.
“Congress meant for the individual mandate to be the centerpiece of Obamacare,” Attorney General Paxton said in a statement. “Without the constitutional justification for the centerpiece, the law must go down. Obamacare is a failed social experiment. The sooner it is invalidated, the better, so each state can decide what type of health care system it wants and how best to provide for those with preexisting conditions, which is federalism that the founders intended.”
Timothy Jost, a health law professor at Washington and Lee University in Lexington, Va., said that administration’s revised position in Texas v. U.S. won’t have much impact on the case.
Timothy S. Jost
“The Department of Justice brief doesn’t change anything,” Mr. Jost said in an interview. “They basically make the same arguments that the individual plaintiffs and the state plaintiffs do as to the major issues in the case.
However, Mr. Jost said that the administration’s brief sounds confused and reads almost like two separate briefs. On one hand, the Justice Department argues that the entire ACA should be invalid because the mandate cannot be severed. On the other hand, the agency argues that court relief should be “limited only to those provisions that actually injure the individual plaintiffs.” Specifically, Justice Department attorneys indicate that health care fraud and abuse protections in the ACA should be preserved.
“It looks like they kind of want to have their cake and eat it, too,” Mr. Jost said. “They want to preserve the provisions of the ACA they like, but not the sections that they don’t like. That could serve to confuse the issue for the appellate court.”
Oral arguments in the case are slated for July with a possible decision expected by the end of 2019. Legal analysts expect the losing side to appeal to the Supreme Court.