Republican state attorneys general plan to argue Wednesday before a federal judge that the Affordable Care Act is unconstitutional and should be struck down, making their case as some GOP candidates are trying to shift focus away from the health law.
The lawsuit asserts that the health law is illegitimate now that Congress has repealed the ACA’s tax-based penalty on people who don’t have health insurance. When the Supreme Court upheld the ACA in 2012 as constitutional, it cited Congress’s taxing power under the Constitution.
The Trump Justice Department is asking the court to invalidate certain planks of the ACA, rather than tossing out the entire law. Among those provisions is a prohibition on insurers denying coverage to people with pre-existing medical conditions.
About 130 million non-elderly people in the U.S. have pre-existing conditions, and before the ACA, insurers could deny coverage to people for conditions including high cholesterol, cancer, and asthma. Democrats say a return to that arrangement would leave many patients without resources, while Republicans contend that over-regulating insurers makes coverage more expensive for many people.
A ruling isn’t expected Wednesday, but the oral argument renews the debate over the ACA just as the midterm congressional campaign enters its high-intensity final stretch heading toward Election Day Nov. 6. Democrats have seized on the lawsuit to assert that Republicans are threatening people with pre-existing conditions, while some GOP lawmakers want to send a signal that they haven’t given up on uprooting a law they strongly dislike.
“There certainly could be consequences—in 2019, 2020, 2021, pre-existing conditions [protection] could end,” said Timothy Jost, an emeritus law professor at Washington and Lee University. “It’s hard to know what could happen, but I suppose we could end up back in 2009, before the ACA.”
The lawsuit, filed in February and led by Texas Attorney General Ken Paxton, argues that the ACA runs afoul of the Constitution now that Congress has repealed the so-called individual mandate. Republicans late last year ended the penalty on those who don’t have insurance starting in 2019, although the requirement to have insurance technically remains.
The mandate has long been controversial. The Supreme Court ruled in 2012 that it fell within Congress’s taxation powers. The repeal of the penalty, GOP officials argue, invalidates not only that provision but the broader law.
Democratic state attorneys general intervening in the case, led by California’s Xavier Becerra, say Republicans have no legal standing to sue over the matter and that tossing the ACA would cause irreparable harm.
U.S. Attorney General Jeff Sessions, in a June letter to congressional leaders, said the department wouldn’t defend the constitutionality of provisions in the ACA.
Still, a group of Republican senators—concerned about the lawsuit’s threat to protections for people with pre-existing conditions—has introduced a bill to ban insurers on the individual market from denying coverage to such people.
“This legislation is a common-sense solution that guarantees Americans with pre-existing conditions will have health-care coverage, regardless of how our judicial system rules on the future of Obamacare,” Sen. Thom Tillis (R., N.C.) said.
Democrats say that under the GOP bill, insurers could still exclude any coverage specifically related to the pre-existing condition, and could vary premiums based on age and gender.
“This bill…doesn’t change fact that if the GOP lawsuit were successful, premiums would soar for millions of families, hundreds of millions of ppl would lose major pre-ex conditions protections, seniors’ drug costs would go up & the individual markets would collapse,” Senate Minority Leader Chuck Schumer (D., N.Y.) tweeted.
The case has also factored into the Supreme Court nomination of Brett Kavanaugh, as Democrats say that Judge Kavanaugh could imperil the ACA if the lawsuit reaches the high court with him on it. GOP strategists say that is irrelevant to Judge Kavanaugh’s fitness for the Supreme Court.
U.S. District Judge Reed O’Connor, who is hearing Wednesday’s argument, has previously taken action against the ACA. In 2016, he issued a temporary injunction to block an Obama regulation that prevented discrimination in health care against people based on their gender identity or history of abortion.
If Judge O’Connor finds that the plaintiffs have legal standing in the case, he may consider whether parts of the law or all of it should be struck down, said Nicholas Bagley, a University of Michigan law professor.
Any decision is likely to be appealed, and the 16 Democratic attorneys general who have intervened would likely seek a stay if Judge O’Connor strikes down the ACA or parts of it.
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