President Donald Trump has long declared the Affordable Care Act – commonly called Obamacare – a total disaster, and now his Justice Department will no longer defend the law against a challenge filed by 20 states, according to a brief filed Thursday.
USA Today reports the change comes because the Trump administration is in agreement that the law’s individual mandate is unconstitutional and certain aspects – including the mandatory coverage of preexisting conditions – are invalid.
The move is also a departure from the longstanding norm, USA Today said, in which the executive branch upholds existing laws.
"I am at a loss for words to explain how big of a deal this is," said University of Michigan law professor Nicholas Bagley in a blog post.
Bagley, a former Justice Department attorney, said the DOJ has a "durable, longstanding, bipartisan commitment" to defending the laws passed by Congress as long as there is a legitimate "non-frivolous" argument to be made in its defense.
"The Justice Department has an obligation to defend the law and it has refused to do so because it dislikes this particular law," Bagley told USA TODAY. The administration decided its "dislike for the Affordable Care Act outweighed its respect for the rule of law."
The attorney general argued in a letter to House Minority leader Nancy Pelosi (D-CA) that the decision is not without precedent:
Attorney General Jeff Sessions acknowledged that "the Executive Branch has a longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense." But Sessions said this was a "rare case" and not unprecedented.
For example, the Obama administration decided not to defend the Defense of Marriage Act in 2011.
The Justice Department holds that the individual mandate – which was eliminated through the Republican tax plan passed last year – was the sole provision lacking constitutionality.
But Sessions asserted that the provision guaranteeing affordable rates for people with preexisting conditions must be tossed out as well.
"Otherwise individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else," Sessions said in his letter to Pelosi.
Both Pelosi and Senate Minority Leader Chuck Schumer (D-NY) immediately condemned the news:
"Tonight, the Trump Administration took its cynical sabotage campaign of Americans’ health care to a stunning new low," Pelosi said in a statement. "Once again, Republicans are trying to destroy protections for Americans with pre-existing conditions. The Trump Administration is perpetuating the same cruel vision of higher costs and less coverage that House Republicans voted for in the monstrosity of Trumpcare."
"The Trump administration once again is allowing premiums to go up and middle class Americans to pay more," Senate Minority Leader Chuck Schumer said in a tweet. "The ACA is the law of the land and DOJ should defend it."
Should the court concur with the Justice Department’s position on the preexisting condition provision, millions of Americans could be adversely impacted – before the ACA came online, those with preexisting conditions were routinely denied health insurance coverage.
The move could also drive up insurance premiums across the board:
While the case still must play out before the nation’s high court, the Justice Department’s decision to not defend the law could create some uncertainty for health insurers that sell plans on the Affordable Care Act marketplace, according to Larry Levitt, a Kaiser Family Foundation senior vice president who closely monitors the health law.
"When insurance companies face uncertainty, they increase premiums," Levitt tweeted Thursday evening.
The Trump administration’s move resulted in another unusual occurrence as well:
The Washington Post reported that three career Justice attorneys involved in the case — Joel McElvain, Eric Beckenhauer and Rebecca Kopplin — withdrew before the filing at 6 p.m. Thursday, an unusual time for such an action.
Bagley said, "That’s almost unheard of. These are lawyers who have made arguments they personally disagreed with countless times. They’re civil servants. They’re good soldiers. Yet they could not sign it. That’s how far out the administration’s position is."