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Trump's DOJ labels the Affordable Care Act unconstitutional, placing healthcare for 133 million at risk

By MICHAEL HILTZIK
JUN 08, 2018

In what may be the Trump administration’s most dishonest and cowardly attack yet on the Affordable Care Act, the Department of Justice late Thursday asserted that key provisions of the law are unconstitutional and refused to defend it against a legal challenge brought by 20 red states.

The move, disclosed in a federal court filing, left healthcare and legal experts aghast. The administration’s argument takes aim at the ACA’s protections for Americans with preexisting medical conditions, who are guaranteed access to health insurance at standard premium rates by the law.

Three DOJ attorneys who had been working on the case withdrew the day before the filing in what was widely assumed in the legal community to be a protest against the agency’s position.

The Justice Department’s abandonment of the ACA leaves the defense of the law in the hands of 16 state attorneys general, including California’s Xavier Becerra, whom the court granted standing on May 16 to intervene in the case. They responded promptly to the filing late Thursday by calling the government’s position “profoundly undemocratic” and asserting that its attack on the ACA’s constitutionality would “cause catastrophic harm to tens of millions of Americans.”

What concerned legal experts even more was the administration’s refusal to defend the law against what’s widely viewed as a hopelessly frivolous legal claim. The government’s refusal to defend the law “represents an enormous blow to the integrity of the Justice Department,” wrote Nicholas Bagley of the University of Michigan law school.

“The laws that Congress passes and the President signs are the laws of the land,” Bagley wrote. “They aren’t negotiable; they’re not up for further debate. If the Justice Department can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books. That’s as flagrant a violation of the President’s constitutional duty to take care that the laws are faithfully executed as you can imagine.”

Aware that some conservatives will point to the Obama administration’s refusal to defend the Defense of Marriage Act in 2011, Bagley observed that the DOMA case implicated profound constitutional questions of equal rights for gay people, which the law constricted. (DOMA defined marriage as between a man and a woman.) Here, by contrast, the Justice Department has bailed out over an abstruse legal principle known as “severability.”

Trump’s action in giving the right-wingers a clear field is aimed at undermining the ACA without addressing it head-on; undoubtedly it knows that a head-on attack is a loser legislatively and even politically. That’s what’s so cowardly and dishonest about its approach. But it’s part and parcel of the Trump approach. He’s tried every backdoor stunt imaginable to undermine the ACA: cut funding for enrollment, education and outreach; promoted short-term junk insurance plans as alternatives to real health insurance; placed obstacles in the way of Americans seeking Medicaid coverage; etc.

Let’s examine the latest case:

The 20 right-wing attorneys general and other red state officials, led by Ken Paxton of Texas, brought their lawsuit on Feb. 26 in Fort Worth federal court. Their argument was based on the tax cut bill enacted by the GOP-controlled Congress and signed by President Trump in December. That bill reduced the ACA’s penalty for not having health insurance — the so-called individual mandate — to zero.

The red states observed that when the Supreme Court upheld the ACA in 2012, it did so on the basis that the penalty was effectively a tax and that because Congress’ taxing authority is absolute, the law was constitutional. Remove the tax as the December bill did, the states argued, and everything in the ACA that is linked to the individual mandate was now unconstitutional.

What’s linked to the individual mandate are the ACA’s community rating and guaranteed issue provisions, which hold that all applicants for health insurance in the individual market must be served, and all at the same premium rates. (Minor distinctions for age and smoking are permissible, but that’s it.) Texas et al. argue that those provisions can’t be “severed” from the individual mandate tax, and therefore they must be unconstitutional.



Of course those provisions are the key to protecting people with preexisting medical conditions or medical histories, who had been locked out of the individual market for years before the ACA.

How important is that protection? The Department of Health and Human Services estimated in January 2017 that half of all Americans, or 133 million people, had conditions that could have led to their being “denied coverage, or offered coverage only at an exorbitant price, had they needed individual market health insurance before 2014,” when the ACA provisions kicked in.

Even conservative legal experts find the Texas severability argument to be less than paper-thin. Jonathan Adler of Case Western University law school calls it a “problematic (and quite cynical) approach to severability.” Adler, it may be remembered, was an architect of King vs. Burwell, the lawsuit that aimed to invalidate the ACA’s premium subsidies in 36 states based on a tortured reading of a single passage in the law. The Supreme Court decisively rejected that argument in 2015, but if Adler thinks this argument is frivolous, that’s saying something.

Among the many weaknesses of the Texas claim pointed out by legal experts and the intervening states, the tax cut bill didn’t actually kill the individual mandate. It’s still in the ACA, even if the penalty for violation is (for the moment) set at zero. Taxes don’t have to produce revenue continually to remain in effect, the interveners observe — it’s not unusual for Congress to delay a tax or suspend it for a year or more; that doesn’t mean it’s gone.

Others assert that congressional intent is crystal clear: While the lawmakers meant to reduce the mandate penalty to zero, they specifically kept in place the community rating and guaranteed issue rules. It may have been unwise, even cynical, for Congress to keep those provisions despite being advised they would drive up premiums in the absence of the individual mandate.

But as Leah Litman of UC Irvine law school and Ian Samuel of Harvard wrote Thursday on the Take Care legal blog, “Congress chose, nonetheless, to kick the legs out from under the mandate and risk a death spiral in the insurance market. Although that decision was profoundly unwise, and probably calculated to make the law fail, it is what Congress wanted.” (Emphasis in the original.)

What remains is to divine the motivations of the plaintiffs in this case, and thereby those of the Trump White House. Having been unable to repeal the Affordable Care Act by actual vote — after all, 70 repeal attempts have failed in the House — they’re plainly out to take another crack at destroying the act via tortured arguments in court. It’s possible that they’ll find a weak-minded federal judge to see things their way at the district court level and even push this wagon up the hill again to the Supreme Court. But the Court has upheld the ACA at every opportunity.

The Trump administration, as Bagley observes, “loathes the ACA.” Why it does so is a mystery, unless one simply assumes that it thinks driving up premiums for ordinary Americans and locking millions out of the health insurance market is a desirable outcome. The public disagrees, by the way. Voters regard healthcare as a major issue for the coming election and want to see costs come down, not go up. The ACA is now viewed favorably by more Americans than otherwise, and repeal is broadly unpopular.

“People who care about public health don’t do this,” Andrew Slavitt, who ran Medicare and Medicaid under Obama, tweeted Thursday about the Justice Department’s abandonment of the ACA. “People who care about the rule of law don’t do this.”

____


Pulitzer Prize-winning journalist Michael Hiltzik writes a daily blog appearing on latimes.com. His business column appears in print every Sunday, and occasionally on other days. As a member of the Los Angeles Times staff, he has been a financial and technology writer and a foreign correspondent. He is the author of six books, including “Dealers of Lightning: Xerox PARC and the Dawn of the Computer Age” and “The New Deal: A Modern History.” Hiltzik and colleague Chuck Philips shared the 1999 Pulitzer Prize for articles exposing corruption in the entertainment industry.

http://www.latimes.com/business/hiltzik/la-fi-hiltzik-doj-aca-20180608-story.html


So there goes protection for pre-existing conditions...

I read yesterday that rates are expected to skyrocket due to the attempts to overturn the law - leaving insurers with potentially a smaller number of insureds that were likely older and/or sick (implying that if it was no longer mandatory the healty, younger folks would opt out).

Makes sense logically, but it didn't happen and they're talking double digits again. The latest R plan of making it so ridiculously expensive (on purpose of as a by product of fighting it) might actually get the law overturned/repealed.

If it is, it'll be interesting to see what happens in 2020, does this help Trump or does it hurt Trump. Roughly 30% of the population at risk, I'd expect that'd be a negative, but nothing surprises me anymore.

Nothing surprises me either.. I'm sure there will be many many folks cheering this because it's anti-Obama and fulfills a Trump promise.. then one day they will wake up without healthcare

or teeth.
or a savings account.
or a regular family doctor.
or Planned Parenthood (for all the NON-abortion stuff they provide to uninsured American citizens)

or a voice.
or hope.
or a chance.

Thanks, Obama.

Hmm.. seems I've heard about this before...

That depends, how many of that 30% would CHOSE to not have the insurance. That's big disclaimer that no one will answer. They say repealing ACA will "make 10 million people lose insurance". But they are not losing it if they are Choosing to not have it.

Y’all are aware the SC already ruled it constitutional, right?

Well, what can be said other than Opps!

I was just referring to the numbers in the article. You're right, some will choose not to have it.

I want to know when they're going to go after EMTALA, because removing the ACA just shifts the cost, and puts others at risk. If we're going to take medical insurance away from people, we might as well make sure they can't get any medical treatment at all on the people's dime.

We can go back and forth, but prior ACA I know that my deductibles, were around 50% less. I know the cost of my parents premiums were about 80% less, as well as their prescription prices.

ACA is broke, and was put in to fail from the beginning. The only problem is, the Dems figured they would have control when it did, and could push medicare for all when it did. . . . jmo on what they thought.

I don't disagree, but I can bo back a decade or more (prior to ACA) and say similar things. The problem is not the ACA alone, it existed before the ACA. Unfortunately the ACA didn't help as much as it should have, and you could argue it made things worse for many. That being said, if there were 60+ attempts to fix it rather than 60+ attempts to repeal it, maybe we'd be in a better place?

I'd actually like to see the government fix the root causes of the high cost of medical expenses. I'm not sure what they are exactly, but I suspect malpractice rates, tort reform, prescription costs, for profit healthcare congolmerates, and insurance companies all have some blame. Not to mention the crap people put into their bodies (the grocery store is a depressing place if you (not you specifically) were to read labels).

What I remember is that prior to the ACA my insurance plan was getting worse and premiums were going up. It has been pretty consistent the last several years.

Lucky for you, sir. Really, I mean that genuinely. My friends own their own business (or use to), they had to close their doors as their premiums went up to over 10K a year. They used to pay about 1500-2000.

Rates were going up back then, yes. But not anywhere near the rate they are going up since. I remember reading about rates in Arizona where they went set to go up 116%+.

People were/are getting hurt everyday.

This is false. Rates were climbing at such a ridiculous rate, that’s why the ACA came to be in the first place.

Under the ACA, rates continued to climb, but not st the pace it was prior to that.

The rates today would’ve been better if congress did what they were supposed to do: continue to improve on the bill like any sane government would do. But instead of doing that, congress decided to try and outright appeal the ACA how many times again, willit?

This is what happens when instead of trying to improve on legislation, you spend the next 6-8 years trying to get rid of it.

I wonder where the ACA would be if the party of no and the party of obama is a Muslim would’ve improved/tweaked/modified the bill instead of whining like a bunch of babies for 8 years trying to repeal it.

Well for one, whether you agree or disagree with the beliefs in ACA, those politicians were voted in to repeal it. That is a fact. Why would anyone try to "fix" something was put in to fail to begin with, for 1? And 2, if you constituents vote you in to do something, you should do your best to do it. That's how this is supposed to work. So to say they should not have been trying to repeal, when they were voted in to do so (again taking your personal beliefs about it out of the equation), is just well.....against why we do this whole election thing in the first place.

Those that sit here and tell you that premiums started to rise with the start of the ACA have forgotten history. In the 70's, health insurance cost my employer at the time about 100.00 per month. I had to pay an addition 12.00 or so a week as my share.

In the 90's, similar insurance cost my employer roughly 250.00 a month with a contribution of roughly 25.00 per week from me.

In 2002, my employer paid the full costs of insurance, Roughly 425.00 a month

Once I became self employed in 2004, I had to buy my own insurance and the costs for just my wife and I were around 600.00 or so a month. By 2008 that number was closer to 1100.00 month, by 2012 it was over 1600.00 (which is about the time ACA came into it's own)

Deductables continued to get higher and higher. Co-pays continued to rise.

So anyone that wants to blame the ACA, had forgotten that since at least the 70's, Health Insurance had gone up virtually every year.... Long before Obama, long before the ACA ever entered our world.

Did your insurance premiums - that you pay with your own money - go up under ACA? We were sold that they would go down.

How about the insurance premiums for your employees - that you pay with your own money?

What were your deductibles before and after ACA? How does $1,500 to $18,000 sound to you?

How many times have you had to switch doctors? That's doctors with an "S"? We were sold that we could keep our doctors.

If the lemmings who voted for it would have actually...you know...READ IT...before voting it would not have been such a turd of legislation. Sometimes it's better to demolish a turd of a building or car and get a new one that actually works.

Defending rising ACA premiums by saying premiums were already rising deflects from the reality that we were sold that premiums would go down. They did/have not.

Perspective. You are assuming I was even alive in the 70's. Not the case

I can only speak to my perspective, before ACA, I personally never had an issue with health insurance, or had an issue paying for health insurance. After ACA, I lost two jobs because of it (for some reason students loans and how they are serviced were included in the ACA bill....) and had insane amount of deductibles.

More perspective. In 2013 I worked a particular bank. My wife recently started at THAT SAME BANK, where as in just 5 years, the premiums went up about 130% of what I was paying In 13, and the deductible has doubled. Same company, same insurance plan from 13 to 18.

You guys keep saying "well BEFORE ACA" - sounds like a BIGGGGGGG whatabout to me. . . . . We have ACA, which is killing people financially, lets get that taken care of because it blows.

You mean the same voting base that voted in the tea party because obama was a foreign born Muslim, this anything he did was viewed as illegitimate?

Maybe not he majority, but I do consider a good portion of the conservative base to be a bunch of ill informed racist wackjobs, if I haven’t made that clear throughout our time discussing with one another.

The ACA wasn’t destined to fail until your leadership decided to let it fail. Lets not spread fake narratives. If a conservative would’ve pushed the same damn plan, the base would’ve been all for it.

But because it was obama, there was no way the GOP and heir alt right base was gonna let it fly.

I mean y’all still can’t successfuly repeal it. That tells the entire WORLD a lot more about y’all than it does the ACA.

No willie, it's exactly the point. Rising costs were already a fact of life, the problem wasn't the idea of the ACA, it was the execution of the ACA.

Had they used the tools already on their belts rather than trying to reinvent the wheel, it might have been the answer.

As for why premiums are going up under Trump, why don't you look at his executive orders that are undermining the ACA..

He wants it dead, I get that, but he has nothing to put in it's place. He said he would, but he doesn't. He never has and never will..

I disagree. I believe it was setup to fail knowingly so they could push single payer when it did.

I would never back anything where the government forces me to purchase a product. R or D. That is the biggest reason I hate ACA.

What's hilarious, is I feel the same about those on the left......

What's hilarious, is the left is now pushing that same idea, only using Russia

False. Nobody is claiming that trump is foreign born. Try again.

When Trump did away with the Obamacare coverage rules (aka requiring Obamacare-compliant policies) I bought a policy that provides better coverage, a lower deductible and $400/mo less in premium payment.

There is ONE Obamacare-compliant policy administer in my county. ONE. Only a government could conclude that ONE competitor would result in lower costs.

The ACA was poor legislation designed/destined to fail. Saving it - all 20,000+ pages - would be a bandaid on a severed limb.

I would never back anything where the government forces me to purchase a product. R or D. That is the biggest reason I hate ACA.


It still amazes me that people who claim to care about Civil Rights the most don't understand the implications of (particularly) the Individual Mandate and how it lays the frame work for massive Civil Rights violations in the future.