In a federal court case filed by Texas and 19 other states against the ACA, the Justice Department filed a brief on Thursday that dubbed unconstitutional the Obamacare requirement for all Americans to have insurance.
The Justice Department argued the judge should strike down the section of the law that protects people buying insurance from being charged higher premiums due to their health history.
In a brief filed Thursday in federal district court in Texas, the department argues that the individual mandate, as well as the community rating and guaranteed issue provisions of the law, are all unconstitutional and need not be defended in a case now pending before the court.
In a legal filing Thursday night, the Department of Justice said that key parts of Obamacare should be invalidated and that the individual mandate is unconstitutional.
Defenders of Obamacare view this move by the Republicans as just the latest in a plot to undermine the monumental legislation however they can since they lack the necessary votes in Congress to repeal it officially.
This claim is based on two features of the law's text: It contains no severability clause - standard language to the effect that the statute would remain valid even if one or more of its provisions proved to be in violation of existing law - and its explicit assertion that the ACA can not function without the individual mandate.
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Becerra is leading an effort by Democratic attorney generals from others states and the District of Columbia to defend the ACA against that lawsuit.
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.
"The decision would cut out the heart of the ACA and completely rewire the health insurance markets", he said.
And though the federal government will apparently no longer defend a pillar of the law, a group of left-leaning states have stepped in to back it in court. For instance, in 2012 the Obama Justice Department said it would not defend the Defense of Marriage Act, which legally defined marriage as a union between a man and a woman for federal purposes.
"In particular, this decision could lead to insurers denying coverage to the 130 million Americans with pre-existing conditions".
Indeed, polls have shown over and over again that the policy issue most on voters' minds right now is health care.
The U.S. Justice Department says that key parts of the Affordable Care Act are unconstitutional. "Congress in 2010 may have thought that a mandate may have been an essential component of the ACA, but a subsequent Congress indicated otherwise by eliminating the penalty without altering the other parts of the law". In addition, the government doesn't go so far as Texas and its fellow plaintiffs in arguing that the entire Affordable Care Act and the regulations issued under it are now invalid. The letter acknowledges that the decision not to defend an existing law deviates from history but contends that it is not unprecedented.
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The 20 states that brought the lawsuit include Texas, Wisconsin, Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Nebraska, North Dakota, South Dakota, South Carolina, Tennessee, Utah, Virginia, and Gov. Paul LePage for the State of ME and Gov. Phil Bryant for Mississippi.
But the administration disagrees with that position.
America's Health Insurance Plans, the trade association for health insurance companies, supports the pre-existing condition protections under the ACA. "Zeroing out the individual mandate penalty should not result in striking important consumer protections, such as guaranteed issue and community rating rules that help those with pre-existing conditions".
The Washington Post reported that three career Justice attorneys involved in the case - Joel McElvain, Eric Beckenhauer and Rebecca Kopplin - withdrew before the filing at 6 p.m. Thursday, an unusual time for such an action.
The major difference is that the Justice Department under President Donald Trump has largely switched sides. A Justice Department spokeswoman said the lawyers' withdrawal had been a department decision, declining to specify whether the lawyers had personally objected to continuing on the case.
Senate Minority Leader Charles Schumer, D-N.Y., released a letter with other top Democratic senators demanding the administration reverse the move, while the Democratic Senatorial Campaign Committee wasted no time blasting out news releases questioning whether Republican candidates agreed with the administration.
The Texas district court judge, Judge Reed O'Connor, still has to rule on the request Texas and Texas' allies have made for the preliminary injunction.
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