Now Trump Wants Judges To Throw Out The Entire Affordable Care Act

Jonathan Cohn

The Trump administration on Monday adopted a more extreme position on a lawsuit challenging the Affordable Care Act: Instead of asking the federal courts to throw out just one part of the law, as it had done previously, now the administration wants the courts to throw out the entire thing.

Protections for people with pre-existing conditions, tax credits for lower- and middle-class insurance buyers, expanded state Medicaid programs for the poor ― all of these things would be gone, and millions of people would lose health insurance if the administration gets its way.

And the effects would not stop there. The health care law includes all kinds of other, lesser-known provisions, touching everything from the way Medicare pays hospitals to the calorie counts on food menus.

“The notion that you could gut the entire ACA and not wreak havoc on the lives of millions of people is insane,” Nicholas Bagley, a University of Michigan law professor and expert on the health care law, wrote in a quick reaction article at “The Incidental Economist” website. “The Act is now part of the plumbing of the health-care system.”

It was less than two months ago that President Donald Trump, during the State of the Union address, declared that one of his priorities was “to protect patients with pre-existing conditions.” It was a vow he has made repeatedly, going back to the 2016 campaign ― and yet it is one he has also broken repeatedly.

Trump spent most of 2017 trying to pass legislation that would repeal Obamacare, as the ACA is known. When that failed, his administration focused on using its regulatory authority to undermine the law.

And in the summer of 2018, the administration decided to back this latest lawsuit against the Affordable Care Act. That was a highly unusual move, because by tradition the executive branch defends federal statutes in court — even those the president might oppose.

To be clear, the lawsuit still has a long ways to go before prevailing. 

Although it got a favorable ruling from a federal district judge in Texas, it is currently before the U.S. 5th Circuit Court of Appeals. If it gets past the 5th Circuit, it would almost certainly go before the U.S. Supreme Court, which has already turned away two major challenges to the 2010 health care law. And those cases were widely viewed as more serious than this one.

Texas v. Azar, as this latest lawsuit is known, comes from Republican officials representing 20 states. It asserts that, by eliminating the financial penalty for people without insurance as part of the 2017 tax cut, Congress removed the health care law’s constitutional underpinning.

Because Congress originally intended for the law’s interlocking pieces to work together, and because judges must respect the will of Congress, the entire statute should come off the books ― or so the lawsuit claims.

A loud, bipartisan chorus of legal experts has said this argument is absurd. Congress may have once thought the penalty was an essential part of the law, these experts note, but by 2017 Congress had obviously changed its mind, as it has the right to do.

The notion that you could gut the entire ACA and not wreak havoc on the lives of millions of people is insane. Nicholas Bagley, University of Michigan law school

“Congress told us what it wanted through its 2017 legislative actions. ... It repealed the penalty while leaving the insurance reforms in place,” five legal scholars, two of whom had led previous legal challenges to the Affordable Care Act, wrote in an official brief when the case first went before a U.S. district judge in Texas.

With so many experts criticizing the argument, and quite a few mocking it, the chances for success would appear to be slim. Still, the 5th Circuit is full of conservative Republican appointees ― and, at this point, nobody is willing to dismiss the threat of this lawsuit out of hand.

That is why the Justice Department created such a stir last June when it made the unusual decision not to defend the law in court.

Even then, however, the Justice Department broke with the plaintiffs by asking the courts to invalidate only one portion of the law ― specifically, the new regulations on private insurance and pre-existing conditions. A major purpose of the financial penalty for people without insurance — a provision also known as the individual mandate ― had been to make those regulations function more effectively.

Until now, the administration’s legal position was to let the rest of the Affordable Care Act stand.

On Monday, the Justice Department filed a note with the court saying that it now intends to side with the plaintiffs fully because it agrees with the district judge. In other words, the administration now believes the entire law should go.

“It’s a complete bombshell,” Abbe Gluck, professor of law at Yale, told HuffPost after learning of the filing on Monday evening. “The administration went from taking the position that only some of the insurance reforms should be struck down to now saying the entire ACA ― Medicaid expansion and all ― should go down with this ship. …  It’s a total 180, with drastic human consequences.”

  • This article originally appeared on HuffPost.