Published: Mon, June 11, 2018
Medical | By Johnnie Horton

GOP at risk from DOJ's move to end health law defense

GOP at risk from DOJ's move to end health law defense

Removing certain provisions tied to the Affordable Care Act, former U.S. President Barack Obama's signature healthcare law, could strike out important consumer protections and potentially harm millions of Americans, a trade association that represents U.S. health insurers said on Friday.

The Post called the move "a dramatic break from the executive branch's tradition of arguing to uphold existing statutes and a land mine for health insurance changes that the law brought about".

"Congress is always free to amend its statutes, even to omit what it previously thought was essential", writes Nick Bagley, a law professor at the University of MI, in a Thursday evening blog post.

In May, the court allowed more than a dozen state attorneys general, all Democrats, to "intervene" in the case and defend the law.

Bagley said the brief reveals the "depth of institutional decay at the Department of Justice", and he expressed profound concern about the precedent it sets. These plans are overwhelmingly opposed by consumer and patient advocates and others, who have warned that they will drive up costs for sicker consumers who need more comprehensive health coverage.

But in this case, he wrote, he could not find those arguments to defend the constitutionality of the provisions and "concluded that this is a rare case where the proper course is to forgo defense".

Weighing in on a Texas challenge to the health law, the Justice Department argued that legally and practically the popular consumer protections can not be separated from the unpopular insurance mandate, which Congress has repealed, effective next year.

The legal challenge led by the state of Texas argues that these consumer protections - as well as the law's multibillion-dollar program for expanding the Medicaid safety net to poor Americans - should be scrapped because Congress a year ago repealed the penalty on Americans who don't have health coverage. The so-called individual insurance mandate is beyond Congress's power, the new filing argued, now that Congress has eliminated the financial penalty.

The crux of the argument goes back to Chief Justice John G. Roberts Jr.'s 2012 ruling upholding the constitutionality of the individual mandate as a valid use of Congress's taxing power.

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

Pelosi and other supporters of the ACA were quick to condemn the move.

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Jim Wood (D-Healdsburg), chairman of Califoria's Assembly Health Committee, did not address that issue but said he'd do whatever it takes to keep the Affordable Care Act's protections alive in California.

What are the ramifications of the Trump administration making these arguments?

"The Trump administration once again is allowing premiums to go up and middle class Americans to pay more", Senate Minority Leader Chuck Schumer said in a tweet. Because the individual mandate is essential to the operation of all of the other ACA provisions, Texas argued, the entire ACA must be invalidated.

The Democrats argued that DOJ's refusal to defend the controversial health care law could eliminate protections for millions of Americans with pre-existing conditions and "have profound consequences for patients, the health care system and the American economy".

Many advocates spoke out against the Trump administration's stance on the law's consumer protections.

People who buy their own insurance, usually because they are self-employed or don't get coverage through their jobs or the government, will be vulnerable.

But Obamacare foes and Trump loyalists supported the administration's position.

"When insurance companies face uncertainty, they increase premiums", Levitt tweeted Thursday night.

Trump and fellow Republicans in Congress have sought to dismantle Obamacare, which sought to expand insurance coverage to more Americans. Already, Democratic candidates in the midterm elections had been playing up their party's role in blocking last year's repeal efforts and their recent success in pushing for the expansion of Medicaid in two more states.

The administration last fall ended a key payment to insurers that helped lower the cost of insurance for low-income Americans who purchased marketplace insurance. Experts believe that could entice healthier people to exit the marketplace in favor of less-expensive, short-term plans, leaving the marketplace with a sicker population that could drive insurance costs higher.

Bagley said, "That's nearly unheard of". They're civil servants. They're good soldiers.

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