The Trump administration is continuing its attack on Obamacare with a new declaration that the mandate requiring everyone to buy insurance is unconstitutional.
The Justice Department made the claim on Thursday as part of a filing in a federal court case in Texas, Reuters reported.
What’s unusual about the move is that the Justice Department has signaled it will break with precedent and not support a federal law that is being attacked, according to The Hill. The case in which it filed its legal brief was brought by Texas and 19 other states. The states claim that Obamacare is unconstitutional.
“The US Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional. 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,” Texas Attorney General Ken Paxton had said when the suit was filed.
Attorney General Jeff Sessions noted in a letter to House Speaker Paul Ryan that his department has a “longstanding tradition” of defending laws, but said this is “a rare case where the proper course is to forgo defense” of Obamacare.
The New York Times reported that the legal strategy in the case was approved by President Donald Trump.
In its filing, the Justice Department also said that the Obamacare provision that barred insurance companies from denying coverage to individuals with pre-existing conditions was also unconstitutional.
The Justice Department based its individual mandate position on the tax overhaul that takes effect in 2019, CNN reported.
That legislation eliminated the penalty for not having insurance. Once there was no federal penalty, the law became a mandate to buy a service — in this case insurance, the Justice Department argued, according to Fortune.
“The individual mandate thus still exists, but it will no longer be fairly possible to describe it as a tax because it will no longer generate any revenue,” the Justice Department said in its brief.
“As of 2019, therefore, the individual mandate will be unconstitutional under controlling Supreme Court precedent holding that ‘the federal government does not have the power to order people to buy health insurance,'” it said.
“In its filing the DOJ said that it agrees with Texas that the individual mandate is now unconstitutional and therefore it will not defend key provisions of the law in the suit,” said Timothy Jost, a professor at Washington and Lee University School of Law.
“The DOJ agrees with Texas that the individual mandate is unconstitutional once the tax penalty was zeroed out, and if it is struck down, the guaranteed issue and community ratings provisions go with it,” he said.
In the case against Obamacare, 15 states, led by California, filed papers in support of the law. No decision on the case is expected soon.
One expert said the legal brief could cause ripples that will impact consumers.
“The Justice Department’s brief creates another cloud of uncertainty for insurers, just as they’re filing proposed rates for 2019,” said Larry Levitt, Senior Vice President for Health Reform at the Kaiser Family Foundation. “When insurance companies face uncertainty, they increase premiums.”
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