Trump administration's latest attack on Obamacare would gut protections for the sick

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The Trump administration declared that it no longer will defend the Affordable Care Act from a challenge filed by 20 states because it agrees that the law's individual mandate is unconstitutional and that key parts of the act - including the provisions protecting those with pre-existing conditions - are invalid. It also said that provisions shielding people with medical conditions from being denied coverage or charged higher premiums and limiting how much insurers can charge older Americans should fall as well. And a Kaiser Family Foundation poll in May found that health care is one of the top issues on the minds of voters going into the 2018 midterms - especially Democrats. Lisa Murkowski of Alaska and Susan Collins of ME, previously helped tank Republicans' efforts to repeal and replace the ACA citing their concerns over the possible elimination of coverage for people with pre-existing conditions.

The president a year ago issued an executive order directing federal agencies to make it easier to buy two alternatives to Affordable Care Act plans. Without that form of tax, the new Administration document noted, the ACA mandate to buy insurance would be unconstitutional as beyond Congress's power to regulate interstate commercial activity.

On June 7, California and the other states with Democratic attorneys general filed their response to the preliminary injunction motion. In the tax law, Congress repealed the penalty for people who fail to have health insurance starting in 2019.

And though the federal government will apparently no longer defend a pillar of the law, a group of left-leaning states have stepped in to back it in court. Allowing the Democratic officials to join the suit "allows us to protect the health and well-being of these Americans by defending affordable access to health care". But without that part, those preexisting condition provisions - requiring that people with preexisting conditions be able to get coverage, requiring that they pay the same - those two would be invalidated by the elimination of the penalty for not having coverage.

Supporters of the health care law expressed considerable alarm on Friday. It will add fuel to Democrats' efforts to make health care a campaign issue in the mid-term elections.

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The decision, announced in a filing in a federal court in Texas, is a rare departure from the Justice Department's practice of defending federal laws in court.

Attorney General Jeff Sessions, in a letter to House Speaker Paul Ryan, said he had determined the individual mandate would be unconstitutional when the tax law takes effective in 2019.

"The decision by the Department of Justice to abandon critical patient protections is devastating for the millions of Americans who suffer from serious illnesses or have pre-existing conditions and rely on those protections under current law to obtain life-saving health care", wrote a coalition of patient advocacy groups, including the American Cancer Society and the American Heart Association.

Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate a year ago, also expressed concern about the administration's new push, saying it "creates further uncertainty that could ultimately result in higher costs for millions of Americans and undermine essential protections for people with pre-existing conditions, such as asthma, cancer, heart disease, arthritis and diabetes".

Rep. Tom MacArthur, New Jersey Republican, included a provision in the House bill that would have required insurers to cover sicker Americans but allowed states to waive the prohibition on charging them higher premiums.

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Three career lawyers in the department's civil division withdrew from the case earlier Thursday and did not sign the brief. But the uncertainty it creates in the meantime could rattle the law's insurance marketplaces just as insurers are starting to file rate requests for next year.

But the administration disagrees with that position.

In court papers, the Justice Department said it doesn't want to stop the law in its tracks, but said they agreed with the plaintiffs who say the most famous parts of the law are now illegal. It also agrees that the ACA's provisions affecting Medicaid, Medicare Advantage, and Medicare Part D should remain law.

If Democrats don't repeat that sentence a thousand times a day between now and November, they're nuts. Judge Reed O'Connor was named to the court by President George W. Bush and has ruled against other aspects of the Affordable Care Act. Ultimately, the case may be heading for the Supreme Court.

The Department in the past has declined to defend a statute in cases in which the President has concluded that the statute is unconstitutional and made manifest that it should not be defended, as is the case here.See Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

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