Justice Department move on health law has risks for GOP

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The Trump administration agrees with assessment of the individual mandate also mentioning that the guaranteed issuance of coverage and community rating provisions are tied to the individual mandate and are not severable requiring those provisions to be voided, but the rest of the ACA is severable.

House Republicans said Friday they aren't sweating the Trump administration's refusal to defend Obamacare against a lawsuit that could nix popular health care protections, saying the case is in its infancy and they acquitted themselves by offering an alternative health plan a year ago.

"This is yet another malicious Republican attack that will undermine the stability of our healthcare system, and could once again mean that you or a loved one are denied healthcare because of a pre-existing condition", said Meredith Kelly, the communications director of the Democratic Congressional Campaign Committee (DCCC). Instead, Justice officials argue in their brief that the ACA's insurance requirement will not become unconstitutional until January, so that "the injury imposed by the individual mandate is not sufficiently imminent" and that the judge could issue a final ruling in the case before then.

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

Parts of the package created the ACA public exchange system and set underwriting and benefits rules for health coverage.

The lawsuit's key argument is that Congress intended for the pre-existing condition protections to work in tandem with the law's individual mandate, the provision that people have insurance or pay a penalty. It is asking a court to throw out major elements, including hugely popular provisions that protect sick people from being denied health insurance or charged higher rates.

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In May, the court allowed more than a dozen state attorneys general, all Democrats, to "intervene" in the case and defend the law. However, following the passage of the Tax Cut and Jobs Act of 2017 (TCJA) [text, PDF], the tax penalty would not be imposed as of 2019. The rest of the ACA can function without the mandate, the brief says, and should be retained.

The 20 states that brought the lawsuit include Texas, Wisconsin, Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Nebraska, North Dakota, South Dakota, South Carolina, Tennessee, Utah, Virginia, and Gov. Paul LePage for the State of ME and Gov. Phil Bryant for Mississippi.

Of Texas v. United States America's Health Insurance Plans said Friday, "Initial filings for 2019 plans have shown that, while rates are higher due to the zeroing out of the individual mandate penalty, the market is more steady for most consumers than in previous years, with insurance providers stepping in to serve more consumers in more states".

Several Republicans expressed bewilderment at the notion that this protection could be declared unconstitutional or overturned.

The Justice Department has opted not to defend existing law in the courts in other matters. The lawsuit will be heard by U.S. District Judge Reed O'Connor of the Northern District of Texas.

Becerra is leading an effort by Democratic attorney generals from others states and the District of Columbia to defend the ACA against that lawsuit.

Supporters of the health care law expressed considerable alarm on Friday.

Though Republicans loathe the 2010 law, many of them have pushed for market-oriented solutions that allow sicker Americans to obtain insurance without facing sky-high prices.

Medical groups were generally unhappy with the department's decision.

How much you might feel the impact will also depend on where you live and whether you qualify for tax subsidies that significantly lower the cost of health insurance and, in some cases, make it free for lower-income people.

SIMON: How might this change how individual people are covered and treated in this country? "With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all". However, we believe that a declaratory judgment would have the same destabilizing effect as a preliminary injunction, and therefore should not be granted. In the legal filing, the Department of Justice argues in favor of invalidating protections for those Americans with pre-existing conditions.

"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", said America's Health Insurance Plans, one of the industry's main lobbying groups.

It will likely take years for the case to wend its way through the courts, meaning the uncertainty could linger over insurers for some time, according to Spencer Perlman, an analyst at Veda Partners.

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