In a dramatic break from a long-standing norm of defending federal laws, Attorney General Jeff Session has announced that the Department of Justice will not defend the Affordable Care Act in a lawsuit filed in Texas by 20 Republican-governed states. The lawsuit seeks to declare all of ACA [aka “Obamacare”] unconstitutional and, therefore, invalid. In other words, the Trump administration is attempting to do in the courts what Republicans in Congress failed to do in 2017.
The decision was approved by [if not ordered by] Donald Trump, said Sessions, in the opening paragraphs of a three-page letter he sent to the court. [For what it’s worth—meaning not much—Trump is on the record as promising to protect coverage for pre-existing health conditions—one of the most popular aspects of the ACA. If the court invalidates the ACA, with Trump’s support, those protections would be gone. An estimated 130 million adults under the age of 65 in the U.S. have a pre-existing health condition.]
The Washington Post calls the lawsuit and the Department of Justice’s position in favor of it…
…a bold swipe at the ACA, a Republican whipping post since its 2010 passage…[the lawsuit] does not immediately affect any of its provision. But it puts the law on far more wobbly legal footing in the case, which is being heard by a GOP-appointed judge who has in other recent cases ruled against more minor aspects
In a telling twist, three career DOJ lawyers quit shortly before Sessions submitted his brief. According to AP, they were replaced with political appointees.
Defense of the law now falls to Attorneys General from 16 other states. In a press release issued yesterday upon the filing of the states’ brief in opposition, Attorney General Xavier Becerra of California said of the lawsuit,
The lawsuit initiated by Texas is dangerous and reckless and would destroy the ACA as we know it. It would leave millions of Americans without access to affordable, quality healthcare. It is irresponsible and puts politics ahead of working families. We won’t sit back as Texas and others try yet again to dismantle our healthcare system. Our coalition of states and partners across the country will fight any effort to strip families of their health insurance.”
It’s anyone’s guess as to whether this latest assault will be approved by a judge. Some legal scholars have called the arguments “ludicrous.” [Also ludicrous would be any attempt by me—a non-lawyer—to explain why they describe it that way. For an actual explanation, please check out this link. ]
So, the fight to preserve a good idea—ACA—that is very popular and has benefited millions of Americans—is not over. In their vindictive battle against all things Obama, Republicans are using every ploy they can conceive of to take away access to health care from the 11.2 million people who have enrolled for 2018. [That figure was slightly lower than in 2017, but it was seen by ACA advocates as “robust,” because so many people signed up, despite the Trump administration doing everything it could depress enrollment by making it more difficult.]
Unfortunately, this assault is too easily buried under the daily deluge of shiny- object distractions flashed by the Trump Administration, and by the tsunami of revelations about corruption that dominate the daily news cycle. We need to stay vigilant.