In a significant shift, the Justice Department now says it backs a full repeal of the Affordable Care Act, the signature Obama-era health law.
It divulged its position in a legal filing Monday with the U.S. Court of Appeals for the 5th Circuit in New Orleans, where an appeal is pending in a case challenging the measure’s constitutionality. A federal judge in Texas ruled in December that the law’s individual mandate “can no longer be sustained as an exercise of Congress’s tax power” and further found that the remaining portions of the law are invalid.
Previously, the Trump administration had not gone as far, arguing in a June brief that the penalty for not buying insurance could be distinguished from other provisions of the law, which could still stand.
Officials said there were legal grounds only to strike down the law’s consumer protections, including those for people with pre-existing health conditions.
But in the new filing, signed by three Justice Department attorneys, the administration said that the decision of U.S. District Judge Reed O’Connor should be affirmed and that the entirety of the ACA should be invalidated.
“Because the United States is not urging that any portion of the district court’s judgment be reversed, the government intends to file a brief on the appellees’ schedule,” the filing stated.
If it were successful, the Justice Department’s position supporting the judge’s ruling would potentially eliminate health care for millions of people and create widespread disruption across the U.S. health care system – from removing no-charge preventive services for older Americans on Medicare to voiding the expansion of Medicaid in most states. The change comes as newly empowered Democrats in the House have vowed to protect the ACA from Republican attacks.
House Speaker Nancy Pelosi, D-Calif., pledged in a tweet Monday night that Democrats would “fight relentlessly” to preserve “affordable, dependable health care.”
Timothy Jost, an emeritus professor at the Washington and Lee University law school, called the Justice Department’s new position “crazy” and “legally untenable.”
“I can’t believe that even the 5th Circuit would take that position,” he said in an interview, suggesting that arguably the nation’s most conservative appeals court would still be reluctant to accept the reasoning backed by the administration. “It would be like invalidating the Interstate Highway System, causing chaos on an unimaginable scale. It’s conceivable that the entire Medicare payment system would collapse.”
The filing reflected “a strictly political decision, not a legal decision,” Jost said. “Trump has wanted to get rid of the ACA, and I guess he sees an opportunity here.”
(c) 2019, The Washington Post · Isaac Stanley-Becker