Trump Administration Outlines Its Case Against the ACA

DOJ 'upon further consideration' explains why it abandoned it partial defense of the ACA.

The Trump Administration this week detailed its argument for a judicial repeal of the Affordable Care Act.

"The district court correctly ruled that, in the absence of any revenue-raising provision, the individual mandate can no longer properly be upheld as a tax and is therefore unconstitutional," Assistant U.S. Attorney Joseph H. Hunt wrote in the 50-page brief filed Wednesday with the 5^th U.S. Circuit Court of Appeals.

Hunt argued that, absent the mandate, "Congress would not have intended to retain the guaranteed-issue and community-rating provisions, which Congress expressly found depended on the mandate, or the rest of the ACA, which involves numerous other interdependent provisions likewise designed to work together to expand health-insurance coverage and to shift healthcare costs."

"Moreover, once those core provisions are excised, the balance of the ACA cannot continue to operate as intended," Hunt wrote.

"The desired interactions between these provisions cannot be achieved once the individual mandate and the guaranteed-issue and community-rating provisions are excised. Instead of rewriting the statute by picking and choosing which provisions to invalidate, the proper course is to strike it down in its entirety," Hunt said.

District Judge Reed O'Connor's decision last December went much further than the DOJ had urged, declaring the entire ACA invalid, as the Texas-led coalition of plaintiff states had requested. Now that an appeal is pending at the Fifth Circuit, however, the DOJ has decided that it agrees with the plaintiffs' argument and O'Connor's decision after all.

The DOJ had argued in District Court proceedings last fall that most of the sprawling healthcare legislation should remain intact, even if the ACA's individual mandate were to be struck down in light of Congress zeroing out its tax penalty. Only the ACA's community-rating and guaranteed-issue provisions—which protect consumers with preexisting conditions—should fall with the mandate, the DOJ had argued.

"In the district court, the Department of Justice took the position that the remainder of the ACA was severable," Hunt wrote, "but upon further consideration and review of the district court’s opinion, it is the position of the United States that the balance of the ACA also is inseverable and must be struck down."

Democrats Seethe

House Speaker Nancy Pelosi (D-Calif.) said the DOJ brief was the latest effort in the "continuing Republicans' monstrous campaign to destroy pre-existing condition protections and Americans' access to affordable healthcare." 

"There is no viable legal argument and no moral defense for the devastation the Trump Administration is asking the court to inflict on Americans' healthcare," Pelosi said in prepared remarks.

Pelosi said the House Democrats next week would vote on the Protecting Americans with Pre-existing Conditions Act to strengthen and reinforce these life-saving protections.

In the meantime, Pelosi said, "the Trump Administration owes the American people answers for why it is seeking to rip away protections for pre-existing conditions and cause such vast suffering for families across America."