The Department of Justice (DOJ) in a brief filed in federal court last week said it will not defend the Affordable Care Act (ACA) in a lawsuit claiming the ACA’s individual mandate, and therefore the entire law, is unconstitutional. In reaction, 16 states and the District of Columbia, which were granted legal standing to intervene in the case, also last week filed a brief defending the ACA.
Attorney General Jeff Sessions in a letter sent to House and Senate leaders wrote that President Trump approved the DOJ’s decision to not defend the ACA. As part of the Trump Administration’s decision to not defend the ACA, the well-received ban on pre-existing conditions would go away. This would have serious implications for many who previously could not obtain health insurance due to prior medical problems.
The Supreme Court in 2012 upheld the ACA’s individual mandate, ruling that although Congress could not force U.S. residents to purchase insurance, lawmakers could impose a tax penalty on individuals who did not enroll in health coverage. As of 2018, 30,000 South Dakotans purchased health care insurance through the federal marketplace established by the ACA. South Dakota did not expand Medicaid, so approximately 10 percent of the state’s residents remain uninsured.
The DOJ in the brief largely agreed with the 20 states challenging the ACA’s constitutionality, saying the individual mandate will no longer be constitutional once the tax penalty is eliminated in 2019. The DOJ also argued that, as a result of the individual mandate no longer being constitutional as of 2019, some of the ACA’s consumer insurance protections also will not be valid. In particular, the DOJ in the brief said the ACA’s ban on insurers denying people health coverage or charging them higher premium rates based on pre-existing medical conditions, as well as limits on how much insurers can charge people based on gender and age, would no longer be constitutional. The DOJ in the brief stated, “This court should hold that the ACA’s individual mandate will be unconstitutional as of January 1, 2019, and that the ACA’s guaranteed-issue and community-rating provisions are inseverable from the mandate.”
However, the DOJ in the brief said many of the ACA’s other provisions could stand without the individual mandate because certain provisions can be deemed legally distinct from the individual mandate. For example, the brief did not argue that the ACA’s Medicaid expansions should be suspended.