DOJ calls Obamacare preexisting condition protection unconstitutional

Henrietta Brewer
June 11, 2018

In a court filing late Thursday, the Trump administration is specifically urging the Texas federal court to strike down two provisions from the ACA: one that requires insurers to cover people with pre-existing conditions, and the other that prevents insurers from charging individuals a higher premium due to their pre-existing condition.

The Justice Department said that also nullified two other major provisions of Obamacare linked to the individual mandate, including one barring insurance companies from denying coverage to people with preexisting conditions.

In a brief filed in a Texas federal court and an accompanying letter to House Minority Leader Nancy Pelosi, D-Calif., the Justice Department agrees in large part with the 20 Republican-led states who brought the suit. The most hypocritical claims take the Trump administration to task for not enforcing the law. In it, the states deem the entirety of Obamacare and its regulations invalid.

On June 7, California and the other states with Democratic attorneys general filed their response to the preliminary injunction motion.

The filing declares unconstitutional the so-called individual mandate-which requires nearly all Americans to purchase health insurance or pay a "tax" if they don't-and calls for several elements of ACA to be invalidated. "Our coalition of states and partners across the country will fight any effort to strip families of their health insurance", he said.


"Justice Department attorneys don't withdraw from cases simply because the government is making an argument the lawyers think the courts should or would reject", he said.

The Patient Protection and Affordable Care Act...as recently amended, forces an unconstitutional and irrational regime onto the States and their citizens. They included provisions establishing health insurance exchanges, expanding Medicaid coverage and subsidizing premiums for lower-income people. But it puts the law on far more wobbly legal footing in the case, which is being heard by a GOP-appointed judge who has in other recent cases ruled against more minor aspects.

An NBC/Wall Street Journal poll released on Thursday - before the Trump administration decision was unveiled - found health care was the top issue for all voters and that it's an issue where Democrats have an overwhelming advantage.

Three attorneys for the government withdrew from the case just minutes before the Justice Department's filing in federal court in Fort Worth, Texas, which signaled an internal rift within the administration over its role in defending USA law, according to University of Michigan Law Professor Nicholas Bagley.

"When Congress reformed the tax system in December 2017, it removed the tax penalty for failing to comply with the mandate", Reyes said. Yet how they would do so was far from clear, especially given Congress' inability so far under the administration to pass health-care legislation.


Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate a year ago, also expressed concern about the administration's new push, saying it "creates further uncertainty that could ultimately result in higher costs for millions of Americans and undermine essential protections for people with pre-existing conditions, such as asthma, cancer, heart disease, arthritis and diabetes". Under another provision, the community rating provision, insurers were not allowed to set premiums based on a person's health history.

What do other states say?

The main trade association for health insurers came out strongly against the administration's position.

The Trump administration argues that because the new tax law eliminates the penalty for not buying insurance, the Supreme Court's previous ruling permitting the mandate as a tax no longer applies. "If the Trump Administration is successful in arguing against the constitutionality of protecting patients' access to care, it will have immediate and disastrous effect on our health care system and the American people". They routinely defend policies they dislike and make arguments they personally disagree with.

Sessions said he agreed with the plaintiffs that without the mandate, the decision in the 2012 National Federation of Independent Business vs. former Health and Human Services Director Kathleen Sebelius, is the proper course. Conservatives at the time accused the Justice Department of politicization. Cortez ScottBishop from royal wedding marches to White House Bishop from royal wedding to march against "America First" policies in DC Supreme Court upholds agreements that prevent employee class-action suits MORE (Va.), Frank Pallone Jr. The case would then go to the 5th U.S. Circuit Court of Appeals, where appointees of Republican presidents hold a 10-5 majority over Democratic appointees.


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