DOJ calls Obamacare preexisting condition protection unconstitutional

United States District Court for the Northern District of Texas- Fort Worth

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However, in NFIB v. Sebelius the Obama DOJ argued that the mandate was not severable from two of the law's crucial provisions - guaranteed-issue and community rating. It helped expand their risk pools while the law forced them to guarantee coverage to any customer.

You may remember that the Obama team was anxious about the interaction between the individual mandate and the popular ACA provisions that say insurance companies can't refuse to cover anybody because of pre-existing conditions and can't charge you more if you are already sick. Judge Reed O'Connor was named to the court by President George W. Bush and has ruled against other aspects of the Affordable Care Act.

The Department in the past has declined to defend a statute in cases in which the President has concluded that the statute is unconstitutional and made manifest that it should not be defended, as is the case here.See Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001). The states argue that, because the TCJA has eliminated the individual mandate penalty, the ACA individual mandate is no longer a tax law.

Could key portions of the Affordable Care Act be declared unconstitutional - years after the Supreme Court upheld them?

Not coincidentally, this is the very language that erstwhile Attorney General Eric Holder used in his letter advising Congress, in February of 2011, that the Obama DOJ would not defend the constitutionality of the Defense of Marriage Act (DOMA).

After filing the brief in Texas, Attorney General Jeff Sessions informed Speaker of the House Paul Ryan of the decision. "These are people who defend programs they disagree with all the time". But in this instance it agrees with the state that the individual mandate and other requirements should be deemed illegitimate as of January 1, 2019.

If this lawsuit succeeds, who would be affected? The insurers say that healthy people will probably opt out of having insurance.

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

"The pre-existing condition thing is what the ads will be run on", said Blendon. Estimates vary widely because there is not a standard definition of what counts as a pre-existing condition.

Q: How can the federal government refuse to defend a federal law? It will lead to "renewed uncertainty in the individual market" and a "patchwork of requirements in the states" and make it more challenging to offer coverage next year.

Is anything going to change right away?

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It will likely take years for the case to wend its way through the courts, meaning the uncertainty could linger over insurers for some time, according to Spencer Perlman, an analyst at Veda Partners.

In that scenario, other ACA provisions would stay in place.

"Otherwise individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else", Sessions said in his letter to Pelosi. Jost wrote that the development puts health insurers in a quandry, since they are now setting rates for the individual market in 2019.

Mr. MacArthur said it would be hard for Congress to revisit the brutal health care fight, although it's unclear if the lawsuit will get "any legs under it".

But others say the legal brief may have minimal impact next year on premiums.

ROVNER: Yes, the individual mandate itself is constitutional because it's a tax.

How is this lawsuit different from previous challenges to the ACA? Without it, all of the ACA's regulations should be invalid, they said, citing a 2012 Supreme Court ruling.

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".

"Zeroing out the individual mandate penalty should not result in striking important consumer protections", America's Health Insurance Plans said in a statement released Friday.

In 2015, the court ruled that Congress did not intend to provide financial aid exclusively for premiums to individuals in states that operated their own insurance exchanges. It is worth noting that, in his 2010 majority decision declaring the ACA constitutional, Chief Justice Roberts declared that the federal government doesn't have the power to mandate people buy health insurance, but that it does have to power to tax individuals who do not have health insurance.

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