"Congress is always free to amend its statutes, even to omit what it previously thought was essential", writes Nick Bagley, a law professor at the University of MI, in a Thursday evening blog post.
According to health-policy experts, a court ruling in favor of the suing GOP states and the administration would trigger what one called "immediate chaos" in the law's insurance marketplaces created under the law. A Justice Department spokeswoman said the lawyers' withdrawal had been a department decision, declining to specify whether the lawyers had personally objected to continuing on the case. "Congress needs to work in a bipartisan manner to develop a solution that covers pre-existing conditions and makes health care more affordable and accessible for every American".
Bagley said the brief reveals the "depth of institutional decay at the Department of Justice", and he expressed profound concern about the precedent it sets. It helped expand their risk pools while the law forced them to guarantee coverage to any customer.
But in this case, he wrote, he could not find those arguments to defend the constitutionality of the provisions and "concluded that this is a rare case where the proper course is to forgo defense".
Congress a year ago struck down only the tax penalty enforcing the individual-insurance mandate, and left the rest of the law intact.
At issue is a lawsuit filed by 20 Republican state attorneys general on February 26, which charged that Congress' changes to the law in last year's tax bill rendered the entire ACA unconstitutional. The so-called individual insurance mandate is beyond Congress's power, the new filing argued, now that Congress has eliminated the financial penalty.
However, the Trump administration believes the provision of the ACA guaranteeing affordable rates to those with pre-existing conditions must be thrown out with the individual mandate.
Pelosi and other supporters of the ACA were quick to condemn the move.
Jesse Hunt, a spokesman for the House GOP campaign arm, wouldn't comment on the administration's decision, but blamed Democrats for disrupting health care markets.
Those with pre-existing conditions should continue being guaranteed coverage at affordable rates, said Orange County Legislator James O'Donnell, the Republican candidate for U.S. Rep. Sean Patrick Maloney's 18th District seat. If the court ends up siding with the Trump administration and the Republican states that brought the suit, the consequences would be significant, Perlman said.
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The former New York City mayor-turned-presidential counsel made the claim during a conference in Israel. Avenatti said the allegations in the countersuit were "frivolous claims".
Senate Democratic Leader Chuck Schumer of NY urged President Donald Trump to reverse the decision. But the lawsuit argues that since the mandate can no longer raise any revenue, the mandate itself is now unconstitutional - and so is the entire ACA.
The DOJ claimed in court Thursday that the health care law's protections relating to pre-existing conditions are now improper, because the individual mandate was repealed. "The brief filed by the Trump Administration yesterday represents a shocking break from precedent, and relies on legally dubious, partisan claims to argue against the constitutionality of the current law", they said in a joint statement.
More than one in four adults younger than 65 have pre-existing medical conditions, according to the Kaiser Family Foundation. This policy change would jeopardize coverage not just for consumers in the individual market, but also people with preexisting conditions who have employer-sponsored coverage.
Since he took office in January 2017, Becerra has emerged as a top opponent of the Trump administration, filing more than 30 lawsuits on health care and other issues.
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.
"When insurance companies face uncertainty, they increase premiums", Levitt tweeted Thursday night.
Because the lawsuit could easily go all the way to the U.S. Supreme Court, a process that could take years, the protections for people with preexisting conditions are likely to stay in place during that period. And the Trump administration has not asserted that the Medicaid expansion made possible by the health care law should be rolled back. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law are not valid either.
Three career lawyers in the department's civil division withdrew from the case earlier Thursday and did not sign the brief.
Here's their argument, and what they want.
"These attorneys are civil servants".