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Trump DOJ officials now want entire ACA nixed; Dem AGs file appeal brief

The U.S. Department of Justice said it now wants an appeals court to strike down the entire Affordable Care Act. This changes a position the Trump administration held earlier when it said only certain portions of the law, like its pre-existing conditions protections, should be nixed.

In a letter to the U.S. Court of Appeals for the 5th Circuit, U.S. Justice Department officials said the administration has decided a district judge's ruling deeming the ACA unconstitutional should be affirmed.

"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," Joseph Hunt, assistant attorney general, and Brett Shumate, deputy assistant attorney general, wrote in the March 25 letter to the 5th Circuit.

The letter was filed shortly after a cadre of Democrats, led by California Attorney General Xavier Becerra, submitted their opening brief with the appeals court, arguing that the plaintiffs who brought the lawsuit — Republican attorneys general and governors from 20 U.S. states and two individuals — lacked standing in the case.

On Dec. 14, 2018, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas ruled that when congressional Republicans zeroed out the ACA's tax penalty for the individual mandate last year under tax reform, it rendered the remainder of the 2010 healthcare law unconstitutional.

Rather than defend the law, the Trump administration sided with the plaintiffs, asking the court to specifically strike down the provision that protects Americans with pre-existing medical conditions.

In December 2018, the administration said it wanted the appeals court to review whether those provisions could be severed from the rest of the ACA.

'Jaw-dropping' action

In its recent court filings, the administration had been sticking with its earlier pursuit of having only a portion of the law struck down.

But the March 25 letter makes clear that the administration has switched its position and is now backing a full invalidation of the ACA. This is despite promises from Trump administration officials — including those at the White House — that they were in favor of safeguarding the protections for patients with pre-existing conditions.

In a March 25 statement, Neera Tanden, president and CEO of the Center for American Progress Action Fund, noted that the popularity of the ACA's protections helped drive the Democrats' win in the House in the November 2018 midterm elections.

University of Michigan law professor Nicholas Bagley said the shift by the administration was "an even more extreme position than the one it advanced at the district court."

"The bad faith on display here is jaw-dropping," Bagley wrote in a March 25 blog posted online.

"Much as it may dislike the fact, the Trump administration has an obligation to defend acts of Congress," he said. "Absent that obligation, the sitting administration could pick and choose which laws it wants to defend and which it wants to throw under the bus. Indeed, the decision not to defend is [a] close cousin to a decision not to enforce the law."

Wreaking havoc

In their appeals brief filed with the court on March 25, the Democratic attorneys general said that if O'Connor's ruling was implemented, it would "wreak havoc on the entire American healthcare system and risk lives in every state."

The 133 million Americans with pre-existing health conditions would be put at risk of losing their coverage, they argued. Insurers also could again put lifetime caps on Americans' coverage.

In addition, they noted that parents would not be able to keep their adult children up to age 26 on their healthcare insurance policies.

O'Connor's decision also would compel about 12 million Americans who obtained healthcare coverage under the ACA's Medicaid expansion to look elsewhere for insurance. Seniors and Americans with disabilities enrolled in the federal government's Medicare Part D prescription drug program would pay more for their medicines if the law was wiped out.

The U.S. Food and Drug Administration also could no longer approve lower-cost versions of biologic therapies, or biosimilars.

And Health and Human Services Secretary Alex Azar would need to forget about some of the initiatives his agency planned to undertake to lower drug prices, given the authority it sought to use — specifically through the Center for Medicare and Medicaid Innovation — was granted by the ACA.

The 2010 law "is now part of the plumbing of the healthcare system, which means the Trump administration has now committed itself to a legal position that would inflict untold damage on the American public," Bagley said.

Case Western Reserve University School of Law professor Jonathan Adler noted that Attorney General William Barr pledged during his confirmation hearings in January to reconsider the Justice Department's position in the ACA lawsuit, leading lawmakers to believe the administration may back away from siding with the plaintiffs.

Now, though, the DOJ has taken a position that is "astounding," Adler wrote in a March 25 blog.

"It was remarkable enough that DOJ failed to question the states' standing to challenge an unenforced and unenforceable mandate, and even more remarkable that the department failed to defend a readily defensible federal law," he said. "It is more remarkable still that the DOJ is abandoning its position — and the position on severability advanced by the Obama administration — in favor of a highly strained and implausible approach to severability with little grounding or precedent."