DOJ Argues Parts Of Obamacare Are Unconstitutional After Mandate Repeal

Saturday, 09 Jun, 2018

A brief filed Thursday by the Justice Department asks a federal court to end protections for people with pre-existing health conditions, many of whom had been unable to buy individual insurance before the 2010 law known as Obamacare took effect.

The DOJ claimed in court Thursday that the health care law's protections relating to pre-existing conditions are now improper, because the individual mandate was repealed.

A coalition of 20 USA states sued the federal government in February, claiming the law was no longer constitutional after last year's repeal of the penalty that individuals had to pay for not having insurance.

Texas and other Republican-led states are suing to strike down the entire Affordable Care Act, while California and other Democrat-led states want to protect the law, the AP reported.

Attorney General Jeff Sessions speaks on Capitol Hill in Washington.

The chances for that argument succeeding are viewed with deep skepticism by legal experts, in part because Congress itself indicated that the rest of ObamaCare could still stand without the mandate when it moved to repeal the tax penalty a year ago.

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. In the meantime, the existing law will likely remain.

Donald Verrilli Jr, Barack Obama's top supreme court lawyer who defended the law, called the decision "a sad moment".

"I find it impossible to believe that the many talented lawyers at the department could not come up with any arguments to defend the ACA's insurance market reforms, which have made such a difference to millions of Americans", Verrilli said. "The brief filed by the Trump Administration yesterday represents a shocking break from precedent, and relies on legally dubious, partisan claims to argue against the constitutionality of the current law", they said in a joint statement.

"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.

Nevertheless, the Justice Department's position did not go quite as far as the Texas suit. Indeed, sign-up season for 2018 under the Trump administration resulted in only a slight enrollment drop-off from Obama's previous year.

"The question is, what does this do to insurance markets now?" said Jost.