The Trump administration has gone to war in court against ACA preexisting conditions protections

I am slightly surprised that a post hasn’t already come up about this.

Yesterday, the Trump DOJ took the extraordinary step of (mostly) siding with the conservative states in the latest attack on the Affordable Care Act. The crux of the argument that the administration is making is that since the Tax Cut and Jobs Act eliminated the ACA’s individual mandate to acquire health insurance (beginning in 2019), the ACA’s key insurance reforms - bans on preexisting conditions denials and guaranteed community rating - must also be struck down. Supporters of the move are comparing the DOJ’s actions to the Obama administration’s refusal to defend the Defense of Marriage Act.

Unprecedentedly, the argument is so transparently flimsy that three career DOJ attorneys asked to be removed from the government’s brief to the court shortly before it was filed. Lots of smart legal minds have already put out a bunch of think pieces about how insane of an action this is and how ludicrous the argument is, including lawyers who are avowed ACA haters. Check out this, this, and this.

IANAL, but look, after King v. Burwell, I no longer believe that any anti-ACA case can ever be made that will (a) be done in good faith and (b) have merit. I think this latest iteration may be even more baseless than King v. Burwell, if such a thing were possible. That said, I fully expect this case to wind up in SCOTUS at some point over the next year or two, because of course every absurd and stupid anti-ACA lawsuit MUST wind up in front of SCOTUS.

What’s amazing about this is that the Trump administration is now on the record DIRECTLY attacking the most universally popular parts of Obamacare in an election year. At a time when the public prefers Democratic approaches to healthcare policies by wide margins, and after the GOP just spent the better part of last year bullshitting the public about how their ACA replacement plans would preserve preexisting conditions protections, the difference between the two parties could not have possibly been brought more sharply into view.

What do you guys think will happen with this case? How will the administration’s actions impact the midterms?

My first reaction is that this will be a benefit for the Dems for the midterms, but my second reaction is that post November 2016 I have no idea what to expect anymore.

I too think it will end up with the Supremes. This Axios piece points out

This blog post is also interesting.

It seems to me as if the GOP wants it both ways: they want to use their votes to eradicate the parts they can get away with publicly before their chance of re-election is compromised and then use the courts to undo the rest, but now their trying to sue the courts based on their own legislative actions.

“We fucked up and now the fucked up thing is fucked up; you have to stop us from fucking up more” is the rallying cry I’m hearing.

I understand the DOJ’s argument, but here is my problem with it.

Let’s say that I choose not to have health insurance. The IRS then assesses me a “tax” of $0. What is my injury in fact to give me standing to bring the lawsuit in court?

There is no need for monetary penalty to have standing. The law requires people to buy a product and SCOTUS has already said this is not allowable under the commerce clause. It’s allowable as a tax, but since a tax must involve money flowing to the government, and this isn’t going to happen, then it cannot be a tax. The argument then is that the law is unconstitutional because there is no constitutional basis to support it

I think it’s a long shot myself, not based on the law but based on the reality of the situation. But if there were no tax at the time of NFIB v. Seliebus, under the current rubric the mandate would have been unconstitutional. This isn’t to say the court may have come to the same conclusion under some different rationale, but just based on the opinion the mandate would have been struck down.

I think the mandate should be ruled unconstitutional myself. The government shouldn’t be able to force people to buy a commercial product.

I hope voting for someone who shares your disdain of feminists, blacks and muslims was worth it. Because this will fuck up many people’s ability to get health care.

It won’t affect the midterms.

The articles really don’t make it clear, but correct me if I have the lawsuit wrong:

The states and some insurance companies are suing to have the ACA declared invalid because they want to deny people based upon preexisting conditions, no longer want the premium caps, and all of the other regulations included in the ACA.

They argue that Congress intended a three legged stool: 1) mandatory health insurance, 2) no denial of pre-existing conditions, and 3) tax credits. Without any one of those three, the system will collapse and therefore if one is invalid, the whole law is invalid.

Specifically, now because there is no tax, and five Justices have held that the individual mandate is not allowable under the commerce clause, #1 fails. As such, #2 and #3 must fail since they were part of an entire scheme and not meant to stand alone.

Is that it?

If so, I’m not sure I agree with it. First, because Congress itself repealed the tax provisions. Even if the mandate is now unconstitutional, an argument could be made that it is exactly as Congress intended: They pass 1, 2, and 3, then a later Congress repeals 1. What is against Congressional intent or creates an absurd result there. Congress voted for exactly the law we have now.

Further, there are absolutely no penalties for violating the individual mandate, no criminal penalties and not even a tax. Imagine a federal law which outlawed abortion, but provided no taxes or penalties for a violation. Could a person realistically say that abortion was illegal or taxed?

The argument just seems procedurally convoluted, and I’m not sure there has ever been an analogous case.

Couldn’t the court’s response instead be to declare the Republicans’ meddling to be unconstitutional, and thus restore the teeth to the mandate?

Please correct me if I’m misinterpreting the issue, IANAL, I’m totally NAL. Yadda yadda.
Couldn’t Congress theoretically put an end to this nonsense by passing a further amendment to Section 5000A that raises the penalty AKA “tax” to one cent?

I know the DOJ’s “further argument” is a lot more broad, but it legally it all seems to balance on this one ridiculous interpretationv

Now, whether they would, it don’t know. I would hope there are enough Republicans left with the courage to join with the Democrats against this nonsense. But I don’t know. And it’s really sad that it takes courage not to vote for something really stupid. I’m going to go turn off the lights and cry for a while.

On what legal grounds would Republican meddling be unconstitutional?

The GOP position makes perfect sense, sick people are expensive to take care of. This would be only the first step toward improving the economy by having health insurance only cover people who are not ill in any way. Then auto insurance that only covers cars that are never in accidents or stolen, followed by eligibility for public assistance only available for those who don’t need it, social security means testing, if you don’t have the means you don’t get any. Eventually we won’t waste tax money or make mandatory requirements for insurance anymore on the 99% and only use it to support rich industrialists the way capitalism was intended to work.

Ask the Republicans filing this suit. The ACA was ruled constitutional, then the Republicans changed it, and now they say that with the change, the ACA is no longer constitutional.

The logic of this latest anti-ACA case is so strained that you could just as easily make an equally plausible argument that the 2017 tax law that eliminated the mandate is actually unconstitutional. It’s dumb all around.

The thing is, I am sick and tired of seeing obviously baseless and preposterous anti-ACA legal arguments get laundered through the legal system so that they suddenly have a stupid facade of respectability around them. The folks who have brought the Texas case have forum shopped it to a right wing hack judge who is almost certain to side with them, and yet again we’re all on a shaky road to the Supreme Court.

There’s no basis to say that the congressional action was unconstitutional. Acts of Congress are presumably constitutional so barring some specific allegation there’s nothing there.

Not exactly. The third leg was subsidies, not tax credits. Folks are making the argument that the three legs are not severable, but I’m not sure that’s true.

The current lawsuit says that #1 is unconstitutional. Under NFIB v. Seliebus this is on pretty solid ground. The opinion held that the mandate is not allowable under the commerce clause. The current lawsuit should be successful in striking down the mandate. Whether that means that #2 and #3 must also fall - I don’t think so. Congress could easily prohibit denial of preexting conditions under their regulatory power. Congress could easily offer subsidies for basically any legal activity.

I don’t see the three items as unseverable.

How is it strained? Do you think that the court would have ruled the mandate constitutional without the tax rationale? On what basis would they have done so?

I don’t dispute that the argument is on more solid legal ground re: the constitutionality of the now-eliminated mandate. I don’t see how anybody has standing to claim harm against a $0 penalty, but sure, whatever. The right wing hack judge who is hearing the Texas case will almost certainly side with the conservatives anyway.

My beef is with the real goal of the case, which is essentially a bad-faith gotcha! game against John Roberts to try to get him to overturn the ACA because the GOP did not do so legislatively. Such a decision would decimate the institutional legitimacy of SCOTUS, but hey, we’re already through the looking glass in regards to anti-ACA lawsuits.

The whole inseverability case is just stupid; even avowed anti-ACA legal scholars don’t dispute the absurdity. Sure, when the 2010 Congress passed the ACA, they felt the mandate and consumer protections were interlinked; even the four conservative justices who dissented in NFIB argued that the mandate and protections were inseverable based on what the 2010 Congress intended for the operation of the act. But things change, and the 2017 Congress clearly felt differently, given that they repealed the mandate but left the consumer protections alone.

But even arguing the case logically affords it too much respect given how transparently baseless and made in bad-faith the arguments are. As much smarter legal minds have already said, this lawsuit is nothing other than the establishing shots of a heist.

Then I don’t understand what your substantive argument is. You recognize legal basis - do I have that right? Do you think that the court would have ruled the mandate constitutional without the tax rationale?

The rest of your post seems to be an attack on the court, the judges, the real politik of it, etc.

Crucially, Congress did not in fact repeal the mandate. They reduced its penalty to 0. That means it’s not a tax and, therefore, the individual mandate is unconstitutional if you follow the logic in the first ACA ruling.

So the question moves on to severability. It’s pretty clear that the individual mandate was an integral part of the law. The argument was that without the mandate the guaranteed coverage portions would cause people to forgo insurance until they had a known issue to pay for. The government argued this in the first ACA case and the SCOTUS seemed to accept it.

IMHO the SCOTUS is trapped by their past decisions here. In a vacuum, the logic progression is sound and that leads to ACA, or at least most of it, being unconstitutional. I don’t think they want to rule that way, so I am guessing they will find someway out, but I don’t think it will be pretty.