The Justice Department laid out its full case for eliminating the law, formally known as the Affordable Care Act (ACA), in a 50-page brief filed with a federal appeals court in New Orleans Wednesday.
And, as Axios puts it, “it’s a doozy,” contending that the ACA in its current form is unconstitutional and should be struck down.
In its action, the Trump administration joined a coalition of Republican-led states seeking to eliminate the health-care law.
The filing was in “the conservative-leaning 5th US Circuit Court of Appeals, which will hear arguments in July and possibly tee up a Supreme Court case next term that could finally decide the fate of the law and render a decision during the heart of the presidential election,” reports CNN.
At the heart of the matter, as ever, is the ACA’s “individual mandate,” requiring Americans to have health insurance or face a tax penalty. The mandate was dropped from the law in 2017, but the Justice brief argues that without it, the entire law must be struck down.
“DOJ is arguing here that Congress’ decision to enacted that set of policies is not evidence of Congress’ intent — that its words from 2010 effectively override its actions in 2017,” says Axios.
Regardless of the 5th Circuit’s decision, the matter is all but certain to end up in the Supreme Court, for the third time. Twice before, Chief Justice John Roberts has provided the deciding vote to sustain the law.
Eliminating the ACA, says the Washington Post, would put “more than 20 million Americans … at risk of losing their health insurance, re-igniting a winning political issue for Democrats heading into the 2020 elections. President Donald Trump, who never produced a health insurance plan to replace ‘Obamacare,’ is now promising one after the elections.”
It’s a politically risky move, coming little more than a year and a half before the 2020 elections — and ignoring top Republicans in Congress, as Rachel Maddow noted on Twitter:
In another tweet, Andy Slavitt, former head of Medicare, Medicaid and ACA in the Obama administration, enumerated what would happen if the ACA were dismantled entirely. Among his predictions: protection for 130 million Americans with pre-existing conditions would vanish, and the uninsured rate would jump by 65 percent.
“Legal battles aside, the Obama health law has remained remarkably stable,” writes the Post. “Even with the repeal of the law’s tax penalty, 11.4 million people signed up for coverage this year, just a slight dip from 2018. The law’s Medicaid expansion continues to insure about 12 million low-income people. And several million young adults are on their parents’ health insurance as a result of the ACA.”
Perhaps tellingly, the Justice Department chose Wednesday to file its brief, when the nation’s attention and media coverage were focused on the compelling Senate testimony of Attorney General William Barr, which was sometimes conciliatory, sometimes combative.
This allowed the ACA filing to escape widespread scrutiny for a day.