Feds Won’t Defend Obamacare in Texas’ Bid to Kill It

FORT WORTH, Texas (CN) – The Trump administration said late Thursday that it will not defend Obamacare in Texas’ federal lawsuit claiming Congress’ removal of the individual mandate tax penalty beginning next year will render the entire law unconstitutional.

U.S. Attorney General Jeff Sessions announced the decision to House Speaker Paul Ryan, R-Wis., in a three-page letter.

Sessions acknowledged how unusual the decision is due to the Justice Department’s “longstanding tradition of defending the constitutionality” of laws if reasonable arguments can be made in their defense. The decision means the Trump administration, the defendant in the case, is effectively agreeing with the plaintiffs.

“But not every professionally responsible argument is necessarily reasonable in this context, as ‘different cases can raise very different issues with respect to statutes of doubtful constitutional validity,’ and thus there are a ‘variety of factors that bear on whether the department will defend the constitutionality of a statute,’” Sessions wrote. “Weighing those considerations here, I have concluded that this is a rare case where the proper course is to forgo defense.”

Texas and 19 other Republican-led states sued the Trump administration in Fort Worth federal court in February, citing the U.S. Supreme Court’s ruling that the Affordable Care Act of 2010’s individual mandate would be an unconstitutional exercise of federal power without the tax penalty. The high court reached that conclusion when it upheld Obamacare subsidies in 2015 to the derision of Republicans.

The red states argue the tax’s end in the Tax Cuts and Jobs Act of 2017 effectively guts Obamacare.

A group of 16 Democrat-led states intervened in the case two months later, arguing Congress merely reduced the individual mandate tax penalty from 2.5 percent to zero and did not repeal any statutory provision of the law.

Sessions’ office also filed a memorandum in response to Texas’ application for a preliminary injunction in the case Thursday.

The Justice Department agrees that the health care law will be invalid when the individual mandate tax penalty is removed in 2019, but it is instead asking the court to construe the plaintiffs’ motion as a request for summary judgment and then enter a declaratory judgment that the individual mandate will be invalid next year.

The timing of the end of the tax penalty is of note as it comes two months after this year’s midterm elections, where Republicans hope to hold onto their majorities in both houses of Congress.

A Texas victory in the case would also spell an end to Obamacare’s most popular provision of banning insurers from refusing applicants who have pre-existing conditions.

In the 27-page memorandum, the Trump administration disagrees with Texas that the rest of the ACA is not severable from the individual mandate. It argues the minimum coverage requirement is not only severable from the law’s guaranteed-issue and community-rating requirements, but that the trio are severable from the rest of the law.

“Namely, ‘if there were no requirement, many individuals would wait to purchase health insurance until they needed care,’” the memorandum states. “In short, Congress found that enforcing guaranteed-issue and community-rating requirements without an individual mandate would allow individuals to game the system by waiting until they were sick to purchase health insurance, thereby increasing the price of insurance for everyone else – the polar opposite of what Congress sought in enacting the ACA.”

Democrats quickly condemned the Trump administration’s decision. U.S. Senator Chuck Schumer, D-N.Y., tweeted that Trump is “once again allowing premiums to go up and middle class Americans to pay more.”

“The ACA is the law of the land and DOJ should defend it,” he tweeted Thursday evening.

Senator Chris Murphy, D-Conn., deemed the decision as “disgusting but not surprising.”

“The President of the United States is actively working to give corporations the power to tell moms, dads and kids that they can’t get the health care they need to stay alive and Republicans in Congress are letting him do it,” he said in a statement. “The entire point of insurance is that it should be there when you need it.”

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