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From pregnancy to bad knees to diabetes to cancer and everything in between, more than 130 million non-elderly Americans have pre-existing conditions. A critical part of the Affordable Care Act was the provision providing protections for the millions of us who live with a pre-existing condition. It meant that insurance companies could no longer charge more or deny coverage to you or your child because of a pre-existing health condition like asthma, diabetes, or cancer. They cannot limit benefits for that condition either. Once you have insurance, they can't refuse to cover treatment for your pre-existing condition.
And now the Trump administration has been arguing in court to take away those protections and leave 130 million Americans hanging out to dry, faced with sharp, spiking insurance hikes or lost coverage altogether. It’s stunning cruelty for a huge part of the population. Worse, the Department of Justice lawyers are arguing against established law. It’s stunningly inappropriate. So much so that three DOJ lawyers resigned from the case rather than have their names attached. From legal experts Ian Samuel and Leah Litman at Take Care:
Earlier today, the Justice Department filed a document in a case about the Affordable Care Act that was so radical, and so self-evidently without merit, that career lawyers in that agency would not sign their names to it. In fact, the document is such a transparent embarrassment that three career lawyers involved in the case withdrew their appearance before it was filed, presumably to avoid the taint of being listed on a docket where it appeared. Reading the filing is enough to explain why none of them could stomach it. The document is not so much a brief as the establishing shots of a heist. The damage it will do to the Department of Justice as an institution is hard to assess at this early date. But while we are not naïve enough to believe that these lawyers will endure the slightest sanction, social or professional for doing this, we are unable to resist a few remarks on their work product, such as it is.
University of Michigan Law Professor Nick Bagley goes further, calling the Justice Department’s actions “enormous contempt for the rule of law.”
In an unexpected move, the Justice Department filed a brief this evening urging a Texas court to invalidate the Affordable Care Act’s crucial insurance reforms—including the prohibition on refusing to cover people with preexisting conditions. Although the ACA is not in immediate peril, the brief represents a blow to the integrity of the Justice Department. It also displays enormous contempt for the rule of law.
For those of you just coming to the case, this is from my earlier recap:
In their complaint, the states [including Texas and other red states] point out (rightly) that the Supreme Court upheld the ACA in NFIB v. Sebelius only because the individual mandate was a tax and (rightly) that Congress has now repealed the penalty for going without insurance. As the states see it, the freestanding requirement to get insurance, which is still on the books, is therefore unconstitutional. Because it’s unconstitutional, the courts must invalidate the entire ACA—lock, stock, and barrel.
If that argument about the “inseverability” of the amended mandated from the rest of the ACA sounds inane, that’s because it is. When Congress first adopted the individual mandate in 2010, it was an essential part of a broader scheme. But Congress is always free to amend its statutes, even to omit what it previously thought was essential. That’s what Congress did when it zeroed out the mandate.
So we don’t have to speculate what Congress would’ve done if it had a choice between invalidating the ACA’s insurance reforms or just invalidating the mandate. Congress made that choice. For a court to now reject it in the service of an absurd argument about severability would be the rankest kind of judicial activism.
You can see the filing below. Even the uncertainty around this case could cause premiums to spike for tens of millions of Americans. Some insurers may close up shop altogether.
Make no mistake about it, this is unprecedented. It has the potential to end healthcare coverage for millions who can no longer afford reasonable plans and/or cannot find a provider to cover them at all. THIS HAS TO BE STOPPED.
Affordable Care Act--Trump filing by dailykos on Scribd