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Justice Department move on health law has risks for GOP

11 June 2018

The U.S. Justice Department said on Thursday that the part of Obamacare requiring individuals to have health insurance is unconstitutional, an unusual move that could lead to stripping away some of the most significant and popular parts of the law.

Under these provisions of the law, insurance companies can not deny coverage or charge higher rates to people with pre-existing medical conditions.

Many lawmakers were playing catch-up with the fledgling case, though Rep. Michael Burgess, Texas Republican, said there could be a "silver lining" if the courts force Congress to revisit heath care under the threat of losing Obamacare's protections for people with pre-existing conditions next year.

Professor Nicholas Bagley, of the University of MI, says the case required the Trump administration to decide whether it will defend the ACA from constitutional attack. MacArthur worked on legislation to continue pre-existing condition protections during the GOP's unsuccessful effort to repeal Obamacare a year ago.

Why they did it: Republicans have targeted the Affordable Care Act for elimination ever since it passed, and President Trump continues to promise that it will be overturned.

But Bagley noted that the Trump administration "loathes the ACA" and the Obama administration's refusal to defend Defense of Marriage Act, a federal law that defined marriage between a man and a woman back in 2011, sets precedent.

Of Texas v. United States America's Health Insurance Plans said Friday, "Initial filings for 2019 plans have shown that, while rates are higher due to the zeroing out of the individual mandate penalty, the market is more steady for most consumers than in previous years, with insurance providers stepping in to serve more consumers in more states".

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California and 15 other states filed an opposing brief on Thursday defending the law.

The states argue that now that Congress repealed the penalty for not having coverage in the tax bill a year ago, ObamaCare's individual mandate can no longer be upheld as a tax, and that it therefore should be invalidated.

Economist Gail Wilensky, who's advised Republicans, said she's not sure about the timing of the administration's action. Allowing the Democratic officials to join the suit "allows us to protect the health and well-being of these Americans by defending affordable access to health care". Those are the ACA rules that keep health plans from considering personal health factors other than age and tobacco use when deciding whether to sell people coverage, or what premiums to charge.

Health care is already a dominant issue in this year's elections, with voters regularly citing it as a leading determinant for how they will vote.

The Justice Department rarely declines to argue in favor of existing law in court and this decision will put pressure on the Affordable Care Act, the formal name for former President Barack Obama's signature domestic achievement.

Sessions, in his letter to Ryan, said that the parts of the law restricting the variance in the premiums that could be charged and requiring insurers to cover everyone did hinge on the mandate, because without the mandate, "individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else". Yet how they would do so was far from clear, especially given Congress' inability so far under the administration to pass health-care legislation.

Texas said that without the fine in place the requirement to have health insurance is unconstitutional and the entire law should be struck down as a result.

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"Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019", said Matt Eyles, the president and chief executive of America's Health Insurance Plans, a trade group for insurers.

Many health care experts disagree with that position.

Despite the Justice Department position, the Health and Human Services Department has continued to apply the health law. They routinely defend policies they dislike and make arguments they personally disagree with.

Recent polling indicates that this could be a political victor for Democrats attempting to recapture at least one chamber of Congress.

The states want the court to declare the mandate to be unconstitutional. The lawsuit will be heard by U.S. District Judge Reed O'Connor of the Northern District of Texas.

"I urge Congressman MacArthur publicly demands that President Trump defends protections for pre-existing conditions and upholds the ACA immediately, so our premiums and medical bills don't skyrocket even further", Kim said in a statement responding to Thursday's decision.

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Justice Department move on health law has risks for GOP