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| DATE | 2019-05-02 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout - NYLXS] Obamacare in Court again
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Trump Administration Files Formal Request to Strike Down All of Obamacare
Supporters of the Affordable Care Act outside the Supreme Court in
Washington in 2015.
Credit
Doug Mills/The New York Times


Image
Supporters of the Affordable Care Act outside the Supreme Court in
Washington in 2015.CreditCreditDoug Mills/The New York Times
By Jan Hoffman and Abby Goodnough
May 1, 2019

The Trump administration formally declared its opposition to the entire
Affordable Care Act on Wednesday, arguing in a federal appeals court
filing that the signature Obama-era legislation was unconstitutional and
should be struck down.
Such a decision could end health insurance for some 21 million Americans
and affect many millions more who benefit from the law’s protections for
people with pre-existing medical conditions and required coverage for
pregnancy, prescription drugs and mental health.
In filing the brief, the administration abandoned an earlier position —
that some portions of the law, including the provision allowing states
to expand their Medicaid programs, should stand. The switch, which the
administration disclosed in late March, has confounded many people in
Washington, even within the Republican Party, who came to realize that
health insurance and a commitment to protecting the A.C.A. were among
the main issues that propelled Democrats to a majority in the House of
Representatives last fall.
The filing was made in a case challenging the law brought by Ken Paxton,
the attorney general of Texas, and 17 other Republican-led states. In
December, a federal judge from the Northern District of Texas, Reed
O’Connor, ruled that the law was unconstitutional.
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A group of 21 Democratic-led states, headed by California, immediately
appealed, and the case is now before the Fifth Circuit Court of Appeals
in New Orleans. The House of Representatives has joined the case as well
to defend the law.
Democrats wasted no time responding to the filing Wednesday. Xavier
Becerra, the attorney general of California, a Democrat, said: “The
Trump administration chose to abandon ship in defending our national
health care law and the hundreds of millions of Americans who depend on
it for their medical care. Our legal coalition will vigorously defend
the law and the Americans President Trump has abandoned.”
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The government’s brief did not shed light on why it had altered its
earlier position, referring only to “further consideration and review of
the district court’s opinion.”
Oral arguments in the appeals court are expected in July, with a
possible decision by the end of the year, as the 2020 presidential
campaign gets going in earnest. Whichever side loses is expected to
appeal to the Supreme Court.
The Justice Department’s request to expedite oral arguments, granted
last month, suggests that the administration is eager for a final
ruling. In its application, it said that “prompt resolution of this case
will help reduce uncertainty in the health care sector, and other areas
affected by the Affordable Care Act.”
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Democrats, seizing on the health law’s popularity and its decisive role
in their winning the House last fall, are already using the case as a
cudgel against President Trump as his re-election campaign gets started.
The law’s guarantee of coverage for people with pre-existing medical
conditions, in particular, remains very popular with voters in both
parties as well as independents.
But Mr. Trump has appeared undaunted, tweeting in April that
“Republicans will always support Pre-Existing Conditions” and that a
replacement plan “will be on full display during the Election as a much
better & less expensive alternative to Obamacare.”
Instead of providing specifics, though, Mr. Trump, members of his
administration and other Republicans have focused on attacking the
Medicare for All plans that some Democratic presidential candidates have
sponsored or endorsed as a dangerous far-left idea that would, as Mr.
Trump tweeted, cause millions of Americans “to lose their beloved
private health insurance.”
As the administration and Texas noted in their briefs, Judge O’Connor’s
ruling turned on the law’s requirement that most people have health
coverage or be subject to a tax penalty.
But in the 2017 tax legislation, Congress reduced that penalty to zero,
effectively eliminating it. Judge O’Connor, the plaintiff states, and
now the Trump administration reasoned that, like a house of cards, when
the tax penalty fell, the so-called individual mandate became
unconstitutional and unenforceable. Therefore, the entire law had to
fall as well.
Mr. Paxton, the Texas attorney general, whose office also filed a brief
on Wednesday, said: “Congress meant for the individual mandate to be the
centerpiece of Obamacare. Without the constitutional justification for
the centerpiece, the law must go down.”
Whether that position will survive judicial scrutiny is another
question. Nicholas Bagley, who teaches health law at the University of
Michigan Law School, noted that only two lawyers signed the brief. That
is highly unusual in a case with such a high profile, he said.
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“This is a testament to the outrageousness of the Justice Department
position, that no reasonable argument could be made in the statute’s
defense,” Mr. Bagley said. “It is a truly indefensible position. This is
just partisan hardball.”
Many legal scholars have also said that even before appellate judges
wade into the more obscure pools of legal reasoning, they could reach a
decision by addressing the question of congressional intent. If Congress
had meant the erasure of the tax penalty to wipe out the entire act,
such an argument goes, it would have said so.
If the Fifth Circuit overturns the O’Connor decision, there is no
guarantee that the Supreme Court would take an appeal. The court has
ruled on two earlier A.C.A. challenges, finding in favor of the act,
although narrowing it.
Of course, the composition of the Supreme Court has since changed.
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A version of this article appears in print on May 2, 2019, on Page A16
of the New York edition with the headline: U.S. Brief Formalizes View
That Health Law Is Illegal. Order Reprints | Today’s Paper | Subscribe

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