In February, Texas and 19 attorney generals of other Republican-led states filed a federal lawsuit challenging the constitutionally of the Affordable Care Act. On Thursday night, the DOJ sided with them, saying that it won’t defend the Obama-era healthcare law “with the approval of the President of the United States.”
After failing to pass a series of ill-conceived, reckless healthcare bills in December, Republicans chipped away at the Affordable Care Act by removing a tax penalty for not having health insurance, effectively dismantling the law’s individual mandate provision. Not long after that, cunning Texas officials and other Republicans swooped in to challenge the constitutionality of core parts of the healthcare law, arguing that, without a penalty, the individual mandate is unconstitutional, and that other parts of the law need to go, too.
The case hinges on a 2012 Supreme Court ruling allowing that the law did not uphold the individual mandate itself, only the tax penalty. As the Washington Post points out, in the decision, Chief Justice John G. Roberts Jr. wrote that the government “does not have the power to order people to buy health insurance,” but “does have the power to impose a tax on those without health insurance.”
When announcing the lawsuit in February, Texas Attorney General Ken Paxton said, “The US Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional. With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all.”
Republicans have been focused on lowering premiums for the rich and the healthy, while gutting protections that prevent insurance companies from charging higher premiums to those with “pre-existing conditions”—a wide-ranging term that includes asthma, depression, and even pregnancy. Under the guaranteed issue provision, the ACA required insurance companies to offer coverage regardless of an individual’s medical history, and under the community rating provision, the ACA prevented companies from hiking up premiums based on medical history. Those provisions are now at risk.
Washington and Lee University School of Law’s Timothy Jost explained the implications of the lawsuit to CNN:
“The DOJ agrees with Texas that the individual mandate is unconstitutional once the tax penalty was zeroed out, and if it is struck down, the guaranteed issue and community ratings provisions go with it,” said Jost.
“In other words, people can once again be denied insurance because of pre-existing conditions or be charged more,” Jost said.
In May, 17 state attorneys general in Democratic states were granted the right to intervene in the lawsuit.