The Trump administration, through the Department of Justice, says the entire Affordable Care Act is unconstitutional and should be invalidated.
This declaration comes as part of a Texas lawsuit where the department had previously argued that only a portion of the law — an important part that dealt with protections for people with preexisting conditions — was invalid. Late last year, a Texas judge ruled that the entire health care law was unconstitutional. At that time, the department said that the law’s pre-existing conditions protections should be struck down but that the law itself should stand.
Although legal experts say the ruling is deeply flawed and likely to be overturned, the Department of Justice’s shift to now side with the Texas judge and no longer defend the law is raising alarm.
There is cause for heightened concern for two reasons, experts and lawmakers say. First, it is rare for the Justice Department to decline to defend a law passed by Congress. Second, the DOJ position heightens the chances that higher courts, including the U.S. Supreme Court, will uphold the Texas decision rending the Affordable Care Act invalid. Such a ruling would leave millions of Americans — including more than 84,000 Mainers — without health insurance.
“I don’t think the Justice Department’s change of position alters the legal analysis … Having said that, the Court typically pays close attention to the government’s official position, so I there is perhaps a greater chance that the Supreme Court, were it to take the case, would rule in favor of the challengers,” Dmitry Bam, associate dean at the University of Maine School of Law, told the Bangor Daily News.
While the situation is worrying, it is important to remember that the ACA remains in effect and no one will lose coverage. At least for now.
It also highlights the importance of a law already passed this month by Maine lawmakers and signed by Gov. Janet Mills which enshrined in state law patient protections that are currently included in the federal law. This provides a backstop in case the Affordable Care Act goes away.
In December, a federal judge in Texas ruled that the Affordable Care Act is unconstitutional because lawmakers had essentially eliminated the individual mandate, a significant part of the law, by doing away with penalties for those who didn’t purchase health insurance.
Unlike the Texas judge, most courts believe in the severability principal and that remains unchanged, Bam said. In this instance, that means that the individual mandate can be separated from the rest of the Affordable Care Act. In other words, the mandate can be repealed and the law remains constitutional.
Courts also typically defer to the intent of Congress when considering federal laws. The majority of Congress believes that the ACA can stand without the individual mandate because members of Congress, including Sen. Susan Collins, voted in 2017 to repeal the mandate’s penalties but left the rest of the law in place after Republican attempts to repeal it failed earlier that year. Collins was one of three Republicans to vote against a repeal effort in the Senate.
“I am very disappointed in the Department of Justice’s decision. It is highly unusual for DOJ not to defend duly enacted laws, which the Affordable Care Act certainly is,” Collins said in a statement.
Collins said she would contact Attorney General William Barr to express her “vehement disagreement” with this decision. She added that if the administration wants to repeal the ACA, it should persuade Congress to do so.
That seems unlikely, especially with a Democrat-controlled House of Representatives that flipped blue in part because of concerns about health care, and especially protection for people with pre-existing conditions, during last year’s election.
“Mainers made clear what they think about repealing the ACA: they don’t support it,” Maine’s newest member of Congress, Democratic Rep. Jared Golden, said in a statement.
The Trump administration’s refusal to support the ACA in court is not surprising given its attempts to gut it through rule changes and efforts to hinder enrollment. This leaves it up to Congress, and state lawmakers, to work to ensure Americans can access affordable insurance that provides coverage of their health care needs.