Published: Tue, June 12, 2018
Medicine | By Daryl Nelson

Noah Feldman: The new case against Obamacare is serious

Noah Feldman: The new case against Obamacare is serious

The Trump administration's decision to stop defending in court the Obama health law's popular protections for consumers with pre-existing conditions could prove risky for Republicans in the midterm elections - and nudge premiums even higher.

Democrats have gotten the message, campaigning on healthcare not just in blue states like California, or swing states like Nevada and Florida, but red states like Kentucky, home of Senate Majority Leader Mitch McConnell, who once vowed to eradicate the Affordable Care Act "root and branch".

Republicans on Capitol Hill had no advance warning that the administration was going to assert that protections for people with preexisting conditions is unconstitutional - a position that defies President Donald Trump's promises to maintain those protections.

"You can't pull the rug out from underneath people with pre-existing conditions", O'Donnell said.

Attorney General Jeff Sessions told House Speaker Paul Ryan in a June 7 letter that the Department of Justice will not defend the constitutionality of the Affordable Care Act mandate for individuals to maintain essential health insurance coverage, in a lawsuit brought by 20 GOP-led states.

The mandate in Obamacare was meant to ensure a viable health insurance market by forcing younger and healthier Americans to buy coverage. "It is now abundantly clear that in passing a massive tax giveaway to the wealthy, Republicans also believe they signed into law permission for insurance companies to once again come after basic protections for the middle class".

That penalty, Texas and the other conservative states argue, is so central to the law that without it, the rest can not stand.

Led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel, the lawsuit said that without the individual mandate, Obamacare in its entirety was unlawful.

Many advocates spoke out against the Trump administration's stance on the law's consumer protections.

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"Justice Department attorneys don't withdraw from cases simply because the government is making an argument the lawyers think the courts should or would reject", he said. But it's crucial to remember that this was exactly the reaction of the same set of people in 2010, when the original argument was made against the individual mandate by libertarian law professor Randy Burnett. He recently ruled that 16 other states and the District of Columbia could join in the case formally to defend the ACA against the challenge.

Sen. Brian Schatz, D-Hawaii, predicted that the resurrection of the issue would mobilize voters, saying, "There's nothing quite like the administration taking an action in court to illustrate the simple fact that they are still coming after your health care". Now that Congress has made a decision to zero out the penalty, as Republicans did past year as part of the 2017 tax cut, the pre-existing conditions have to go, too. "Both sides, Democrats and Republicans, are using the people as political pawns".

If the court agrees with the Justice Department's argument to toss out part of the law that protects individuals with an existing medical condition, that could affect millions of Americans who buy insurance directly from the marketplace. So, the pre-existing condition protections are likely to stay in place during that period.

And it didn't take long for Democrats to respond to the Trump administration's new posture.

Rep. Tom MacArthur, New Jersey Republican, included a provision in the House bill that would have required insurers to cover sicker Americans but allowed states to waive the prohibition on charging them higher premiums.

The Justice Department concurred, saying the court should consider ordering that as of January 1, two popular parts of the law will be invalid: that people with preexisting conditions must receive coverage, and that they can not be charged more than healthier consumers.

Democrats "are responsible for the current problems that we have in our healthcare system as a result of Obamacare", said Hunt, noting the law passed without a single Republican vote. "Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019", Matt Eyles, AHIP's president and CEO, said Friday in a statement.

Becerra estimated that the states that back the health care law could lose half a trillion dollars in health care funding if the suit is successful.

Today, surveys suggest most Americans see the legislation in a generally positive light, a reversal from most of its eight-year history.

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