DOJ Says It Won’t Defend ACA in Latest Challenge to Constitutionality—Threatens Protections on Pre-Existing Conditions

Rare Daily Staff

The U.S. Department of Justice said it agrees with plaintiffs in a lawsuit that seeks to throw out as unconstitutional the Patient Protection and Affordable Care Act—the Obama administration’s landmark healthcare reform—and will not defend it.

The lawsuit, filed by 20 states and two individuals in February in U.S. District Court in the Northern District of Texas, argues that the Tax Cuts and Jobs Act, the Trump Administration’s tax reform legislation passed in 2017, will render invalid the argument that the individual mandate was a lawful exercise of the taxing power, the basis under which the law was upheld as constitutional. It seeks to invalidate the entire law.

In a letter to House Speaker Paul Ryan, R-Wisconsin, Attorney General Jeff Sessions said the Department of Justice agrees with the plaintiffs in the Texas case and said that in 2019, when the particular provision in the tax reform legislation takes effect, the basis for the ruling will fall.

If the challenge to the constitutionality of the individual mandate is successful, it could have significant ramifications beyond the question of the constitutionality of the individual mandate. The Department of Justice argues that there are several provisions that are not severable from the individual mandate that will have to be thrown out with it, including the prohibition on insurance companies against denying coverage to anyone because of pre-existing conditions.

Unlike the plaintiffs in the Texas case, though, the Department of Justice believes parts of the law can still stand if the individual mandate falls. But it does argue that if the individual mandate is ruled unconstitutional, it cannot be severed from the guaranteed coverage in the individual and group markets and the prohibition on discriminatory premium rates.

Sessions in his letter acknowledged to Speaker Ryan that the decision to not defend the ACA breaks with “a longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense.” However, he argued doing so is not without precedent and that he has “concluded that this is a rare case where the proper course is to forgo defense” of the law.

A group of 17 Democratic-led states have been recognized as having standing in the case and have filed a brief arguing for the preservation of the ACA.

July 11, 2018
Photo: Attorney General Jeff Sessions