Change in policy was opposed by AG Bill Barr, GOP House leader
by Mike Andrew -
SGN Staff Writer
The Trump administration said its Department of Justice (DOJ) will now back a suit seeking to overturn the Affordable Care Act (ACA, or Obamacare).
The case, Texas v. United States, is one of several suits brought by Republican-controlled states arguing that the ACA is unconstitutional. Their claim was upheld by US District Judge Reed O'Conner and is now before the 5th Circuit Court.
The DOJ's announcement marks a significant change for the department. Under former Attorney General Jeff Sessions, the department said it would not send lawyers to support the ACA but would not join the states in opposing it. Now DOJ attorneys will join Texas lawyers to argue against the law before the 5th Circuit.
'The Department of Justice has determined that the district court's comprehensive opinion came to the correct conclusion and will support it on appeal,' said DOJ spokesperson Kerri Kupec, explaining her department's change of stance.
Strangely enough, the change in policy was opposed by the current head of the DOJ, Attorney General Bill Barr, according to Politico. Barr and Health and Human Services Secretary Alex Azar reportedly argued against the change.
They were joined by House Republican leader Kevin McCarthy, who phoned the president to complain that the administration's decision 'made no sense - especially after Democrats killed Republicans in the midterms in part over the issue of preexisting conditions,' according to Axios.
Politico reported that the policy change was led by the administration's domestic policy chief, Joe Grogan, and the acting director of the Office of Management and Budget, Russ Vought. Both are close allies of White House acting chief of staff Mick Mulvaney, who helped to engineer the move.
What will happen if the courts strike down the ACA?
While little might happen immediately to some people who are covered by employer-provided health insurance, the stakes for millions of Americans who rely on the ACA could not be greater:
o 133 million Americans with preexisting conditions, including people living with HIV, could lose their health insurance or find that their premiums have increased to such a level that they are no longer affordable.
o 171 million people, including some people insured under employer-provided plans, will face restored lifetime caps on insurance payouts, meaning they could lose coverage for treatment of chronic diseases like HIV, cancer, or hemophilia at some point.
o 21 million people who buy insurance on ACA exchanges could lose coverage completely.
o 12 million adults could lose Medicaid coverage.
o 60 million people covered by Medicare could face significant premium increases and changes to their coverage plans.
o 2 million young people could lose the right to be covered under their parents' insurance.
The legal arguments
Although the US Supreme Court has upheld the constitutionality of the ACA before, the latest case claims that new factors make the law unconstitutional.
In Texas v. United States, Judge O'Conner ruled that the prior Supreme Court decision upholding the ACA was based on Congress's taxing authority, a legal authority that no longer applies since Congress repealed the IRS penalty for individuals who fail to buy health insurance.
Therefore, since January 1, 2019, the ACA's individual mandate requiring people to have health insurance 'can no longer be sustained as an exercise of Congress's tax power,' O'Conner wrote in his opinion.
O'Connor ruled that the ACA could remain is force while his judgment is under appeal to the 5th Circuit Court of Appeals. Most legal experts think the 5th Circuit will affirm the district court ruling, but the action of the Supreme Court is less predictable.
'No matter how the appeals court rules, the matter is certain to move on to the Supreme Court,' said Edward Fensholt, senior vice president and director of compliance services at Lockton, a benefits brokerage and consulting firm, told SHRM Online.
However, Andrew Douglass, an attorney with Reed Smith in Chicago, predicted that if the 5th Circuit reverses the district court decision, the Supreme Court is unlikely to review the case. But he predicted that the 5th Circuit, which he characterized as conservative, would affirm, in which case Supreme Court review would be likely.
Senate Minority Leader Chuck Schumer (D-NY) announced plans on March 27 to force a vote on a measure to protect the ACA. The legislation would be attached as an amendment to the disaster aid bill the Senate is now considering.
'It will very simply prohibit the Department of Justice from using any funding to litigate the downfall of the ACA in the Circuit Court. Let's see if all of our Republican colleagues who have said they don't want to take away protections for preexisting conditions,' Schumer said on Wednesday. 'Let's see how our Republican colleagues will vote on this.'
If the amendment comes to the Senate floor for a vote, it would put vulnerable Senate Republicans in a difficult position on health care politics. But Senate Majority Leader Mitch McConnell (R-KY) would be unlikely to approve such a vote given that it would pit GOP senators against the Trump administration.
'Will the leader do what he's so characteristically doing in the majority? Block this amendment?' Schumer challenged. 'Will any Republican on the other side stand up and say don't block it?'
Meanwhile, Wisconsin's newly elected Democratic governor, Tony Evers, and Democratic attorney general Josh Kaul withdrew their state from the lawsuits challenging the ACA. His Republican predecessor, Scott Walker, was a leading opponent of the law.
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