POLITICS
06/20/2018 02:42 pm ET

The Latest Anti-Obamacare Lawsuit Is Both Bonkers And Dangerous

If you pine for the days when an insurance company could reject your application based on pre-existing conditions, you'll love what Jeff Sessions is up to now.

The latest legal assault on the Affordable Care Act is downright laughable, but the consequences would be deadly serious if it succeeded. 

President Donald Trump and congressional Republicans failed to repeal the Affordable Care Act last year despite making a real go at it, and conservative activists and state officials failed in two previous attempts to get the Supreme Court to overturn or upend the law. Now they’re trying again to get the judiciary to do their dirty work for them.

The Trump administration is now taking the nearly unprecedented step of refusing to defend the law against a legal challenge from elected GOP officials in 20 states.

Those state officials maintain that the Affordable Care Act’s individual mandate is now unconstitutional because Congress repealed the tax penalties owed by those who fail to comply with it. And, further, they say the entire law must fall if the mandate doesn’t conform to the Constitution.

The Trump administration merely wants the court to throw out the protections for people with pre-existing conditions. This, by the way, is separate from all the other stuff Trump is doing to damage the Affordable Care Act’s insurance markets.

Before reviewing the absurd legal arguments of the U.S. Department of Justice under Attorney General Jeff Sessions, it’s important to be clear about what would happen if these Republican officials succeed.

At a minimum, a ruling against the Affordable Care Act would eliminate the most popular part of the law President Barack Obama enacted in 2010: the ban on health insurance companies rejecting people or charging them higher premiums because of pre-existing conditions.

A ruling in favor of the state officials or the Trump administration would herald the return of the days when people with any black marks on their medical histories could find themselves uninsurable.

It might seem bizarre for the Trump administration to call for the end to a consumer protection that the vast majority of Americans support in the middle of an election year in which Democrats already are attacking the GOP for harming the insurance markets and driving up costs.

But the Justice Department lawyers thought of that. They asked the federal judge in Texas hearing the case to hold off on wrecking the insurance market until January ― a couple of months after the midterm elections.

A ruling in favor of the state officials or the Trump administration ― each of which wants to court to blow up the Affordable Care Act in a different way ― would herald the return of the days when people with any black marks on their medical histories could find themselves uninsurable.

Applications for health coverage would once again require consumers to detail every time they’ve been sick or injured, going back as far as 10 years, so that insurers could decide whether to issue a policy and how much to charge.

In other words, those with the greatest need for health care would again face the biggest obstacles to getting it.

But this wouldn’t affect only people with histories of serious or chronic illnesses, such as cancer or diabetes. Women who have experienced postpartum depression or underwent Caesarean sections could be tagged as having pre-existing conditions. A high school sports injury or adolescent acne could even be enough for an insurance company to deny coverage or jack up rates.

This is how it worked before the Affordable Care Act for those who don’t get health benefits from a large employer or a government program like Medicare.

JI SUB JEONG/HUFFPOST

More than 50 million Americans have something in their medical histories that could disqualify them from health insurance absent the Affordable Care Act’s rules, according to the Henry J. Kaiser Family Foundation, a nonprofit research organization that focuses on national health issues.

These consequences would extend beyond those consumers who currently get their health insurance from the Affordable Care Act’s exchange marketplaces or directly from insurers.

People who have health benefits from a large employer wouldn’t see their coverage disappear, but new employees could have to wait months for their coverage to start or shoulder the costs of any medical conditions they had before joining a company. Employees at small companies could face higher premiums because insurers could go back to setting rates based on the health status of the workers on these plans.

The original plaintiffs in the case are Maine Gov. Paul LePage (R), Mississippi Gov. Phil Bryant (R) and the GOP attorneys general of 18 other states, led by Ken Paxton of Texas. These officials, who brought the lawsuit in February, are seeking to have to entire Affordable Care Act stricken.

This would result in a 50 percent increase in the national uninsured rate, boosting the number of people without coverage by 17.1 million, according to an analysis by the Urban Institute, a nonpartisan think tank.

If you live in Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia or Wisconsin, this is what your elected officials are doing.

Sessions’ Justice Department doesn’t go quite as far as these state officials, seeking only to have the court invalidate the protections for people with pre-existing conditions. Other parts of the Affordable Care Act, including its subsidies for private insurance and its expansion of Medicaid for poor adults, would remain if the court rules the way Justice wants.

How exactly the subsidies would still work under this scenario is unclear, since their value is calculated based on the cost of a standard insurance policy in each geographic area, and such a “benchmark” plan can’t exist if insurers can vary prices by each customer’s health status.

Even a ruling on these less-destructive grounds would still invalidate the pre-existing condition coverage portions of the Affordable Care Act. And health insurance markets could become inhospitable again to anyone who has been to a doctor more than a couple of times in the last decade.

Attorney General Jeff Sessions discusses a new Justice Department initiative on religious liberty during an event in June.
Jim Bourg / Reuters
Attorney General Jeff Sessions discusses a new Justice Department initiative on religious liberty during an event in June.

To understand how we got here and what the state GOP leaders and the U.S. Department of Justice are arguing, it’s necessary to review what happened the first two times conservatives turned to the courts to undo the Affordable Care Act and what has happened since.

In 2012, the Supreme Court ruled in favor of the Obama administration in a case challenging the law’s individual mandate, which requires most U.S. residents to obtain health coverage or face fines for failing to comply. The question in that case was essentially whether the federal government can compel individuals to buy a commercial product and penalize them if they don’t. At the time, Obama’s Justice Department maintained the entire law couldn’t stand without the mandate.

Chief Justice John Roberts and four other justices decided that this was constitutionally sound because Congress has the authority to tax people, and the penalties qualified as such.

Three years later, Roberts and five other justices sided with the Obama administration again in another attempt to damage the Affordable Care Act by eliminating insurance subsidies for more than half the country.

This case, engineered by conservative and libertarian lawyers, heavily relied on a fictitious history of Congress’ intentions when lawmakers wrote the Affordable Care Act in 2009 and 2010. Seizing on a few words in the statute, these lawyers argued that Congress wanted only residents of states that set up health insurance exchanges, not those in states that used the federal exchanges, to have access to subsidies. Roberts wasn’t having it.

And then last year, Trump and the GOP Congress spent months trying to repeal major parts of the law ― and uninsure 20 million or so people in the process ― but failed. But they eventually were able to deal some damage to the law by repealing the financial penalties associated with the individual mandate, which, for practical purposes, eliminated the mandate.

Then we come to the latest legal challenge, which appears to be as rigorously considered as a snotty Facebook comment.

The states’ argument goes like this: The mandate was legal as a tax, but it’s not a tax ― or constitutional― now that there isn’t a penalty (aha, take that, John Roberts!). But it goes further: Because the Obama administration argued in 2012 that the court couldn’t invalidate the mandate without blowing up the whole law, the court should blow up the whole law now that there are no fines and there shouldn’t be a mandate (aha, take that, Barack Obama!). 

The Justice Department’s argument is similar to what the attorneys general assert but would only blow up the parts of the law for people with pre-existing conditions, not the rest of it (aha, take that, Barack Obama ― but please not until after Election Day).

To be fair, using Roberts’ argument about taxing and Obama’s argument that the Affordable Care Act couldn’t work without the mandate against them is clever, in a high school debate club kind of way. 

Leading legal scholars ― including those who were central to bringing the previous lawsuits against the Affordable Care Act ― think this lawsuit is nonsense.

Three career Justice Department attorneys took their names off the department’s brief to the court last week. One of them, a veteran of more than 20 years, quit the day after it was issued. Chad Readler, the political appointee heading the Justice Department’s civil division, signed off instead, and Trump announced his intention to nominate him to the federal appeals court the same day.

Sessions’ decision to abandon the government’s defense of a federal law is highly unusual. The Justice Department is responsible for representing the United States in lawsuits and is charged with defending lawful statutes as long as there is “any reasonable argument” supporting the government’s case.

One exception was the Justice Department’s refusal under Obama to protect the Defense of Marriage Act in court seven years ago. That case was about human rights; the current one is about health insurance regulations. 

Stepping in for the federal government in this Affordable Care Act are Democratic state leaders, led by California Attorney General Xavier Becerra, who are defending the law instead. Officials from Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington state and the District of Columbia also are participating.

In different ways, the Republican state officials and Sessions’ Justice Department argue that a ruling against the pre-existing condition provisions must also be a ruling against other parts of the law or the whole thing.  

Leading legal scholars ― including those who were central to bringing the previous lawsuits against the Affordable Care Act ― think this lawsuit is nonsense.

“Congress told us what it wanted through its 2017 legislative actions. ... It repealed the penalty while leaving the insurance reforms in place,” reads a brief to the court written by an ideologically diverse group of legal scholars. 

So do Alaska Gov. Bill Walker (I), Colorado Gov. John Hickenlooper (D), Ohio Gov. John Kasich (R), Pennsylvania Gov. Tom Wolf (D), Maryland Gov. Larry Hogan (R), Montana Gov. Steve Bullock (D), Nevada Gov. Brian Sandoval (R), North Carolina Gov. Roy Cooper (D) and Gov. Jay Inslee (D). 

“Helping our neighbors get health insurance even though they have a pre-existing condition is something Americans support and the administration’s action will hurt families in our states,” the governors wrote Monday in a joint statement

Siding with the Republican state officials and the Trump administration are Gun Owners of America and a handful of conservative dark money and activist groups.

As for Congress as a whole, Republican lawmakers are more or less or stammering their way through justifications or misgivings.

Senate Majority Leader Mitch McConnell (R-Ky.) made some noises about how “everybody” in the Senate supports protections for pre-existing conditions ― a strange comment from a man who attempted to shepherd the weakening of those protections through the Senate last year. 

This court case could take months to resolve. If McConnell or any other GOP leaders in Congress wanted to, they could resolve the dispute with legislation, or at least file briefs of their own explaining their intentions when they repealed the mandate penalties. But they haven’t, and there’s no evidence they will.

After all, they also want Obamacare obliterated ― they just don’t want their fingerprints on the detonator.

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