Responding to a lawsuit from conservative states seeking to invalidate the Affordable Care Act, the Justice Department told a judge in Texas on Thursday that Congress’ decision to repeal the penalty for failing to buy health insurance renders unconstitutional other Obamacare language banning insurers from charging people more or denying them coverage based on a pre-existing condition.
The Texas-led lawsuit filed in February claims that the recent elimination of Obamacare’s individual mandate penalty means that the whole health care law should now be ruled invalid. The mandate penalty was wiped out effective in 2019 as part of the GOP tax law passed late last year, H.R. 1 (115).
The administration's evening filing says it agrees with states bringing the suit that the individual mandate is unconstitutional, as are two of the law’s major insurance provisions meant to protect people with expensive medical conditions. With the filing, the Trump administration is asking the courts to wipe out protections that many congressional Republicans were wary of eliminating in their failed efforts to repeal Obamacare.
Attorney General Jeff Sessions, in a letter to House Speaker Paul Ryan, acknowledged that the executive branch typically defends existing federal law, but he said this was a “rare care where the proper course” is to forgo defense of the individual mandate. He said the two insurance provisions, known as guaranteed issue and community rating, should be struck because they are too closely tied to the individual mandate. Without the mandate, Sessions wrote, “individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else.”