For 18 months, the Trump administration has routinely and
aggressively threatened the Affordable Care Act and the tens of millions of
Americans for whom it provides health care coverage, but their attacks had
remained largely in the province of Executive Orders weakening regulations or
demands to Congress. That all changed on Thursday night when the Trump
administration said that it would not defend the Affordable Care Act in court
in the case of a lawsuit filed by 20 Republican-led states, Texas vs. United States, claiming that
the health care law is unconstitutional.
In a letter penned by Attorney General Jeff Sessions, the
administration declares that it will not defend the existing law of the land
contained within the ACA and will instead side with the plaintiffs in the
contention that it is unconstitutional to require most Americans to have health
insurance and that, by extension, any mandated protections in the ACA
preventing insurance companies from discriminating against people living with
pre-existing conditions are no longer valid.
“After careful consideration, and with the approval of the
President of the United States, I have determined that…the Department will not
defend the constitutionality of 26 U.S.C. 5000A(a), and will argue that certain
provisions of the Affordable Care Act (ACA) are inseverable from that provision”,
writes Attorney General
Sessions in the letter to House Speaker Paul Ryan (R-WI), referring to the
section of the ACA that requires most Americans maintain minimum
essential coverage.
Unlike the plaintiffs in Texas
vs. United States, the Trump administration does not argue that the
individual mandate is “inseverable” from the ACA as a whole, but rather
contending that it is only inextricably linked to those provisions which “guarantee
issuance of coverage in the individual and group market” and those “prohibiting
discriminatory premium rates.”
While Attorney General Sessions tries to justify his actions
by pointing to prior executive branch actions, this decision by the Department
of Justice to pick and choose which laws it views as constitutional and, as a
result, which ones it will defend in court, is truly unprecedented and
represents a level of executive overreach that is stunning even by any standard.
“If the Justice Department can just throw in the towel
whenever a law is challenged in court, it can effectively pick and choose which
laws should remain on the books”, writes University of
Michigan law professor Nicholas Bagley. “That’s as flagrant a violation of
the President’s constitutional duty to take care that the laws are faithfully
executed as you can imagine.”
The potential effects of the Trump administration’s decision
are as devastating as anything that would have resulted from Congressional
Republicans attempts at repealing the ACA last year. In addition to removing
protections from health insurer discrimination and outright denial of coverage based
on pre-existing conditions, including HIV, the position being advocated by the
DOJ would cause havoc in insurance markets at a time when insurers are filing
their rates with state regulators for the coming year would be staggeringly
destabilizing.
Should the plaintiffs—and by extension the Trump
administration—win their case in district court, it would likely wind up making
its way back to Supreme Court, setting up a second round of deliberations on
the ACA’s constitutionality by the country’s highest court that is made
possible by the recent GOP tax bill, which eliminated the federal tax on people
without health insurance. It is worth noting that, in his 2010 majority
decision declaring the ACA constitutional, Chief Justice Roberts declared that
the federal government doesn’t have the power to mandate people buy health
insurance, but that it does have to power to tax individuals who do not have
health insurance.
The possible impact of this decision on people living with
and affected by HIV is as immense as it is harmful. Few portions of the
American population faced the degree of institutional discrimination and denial
of health insurance coverage as people living with HIV and with the myriad
related health conditions that can come with it. This decision by the Trump
administration to selectively defend the rule of law and to prioritize the
pocketbooks of insurance companies and their shareholders over the very lives
of people living with and affected by HIV is unconscionable. We at AIDS United
will not rest until we have once again helped derail this administration’s
attempt to rip health care away from the HIV community and we will keep you
abreast of developments in this case as they happen.
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As this attack on the health care of millions by the Trump
administration shows, elections have consequences. In 5 months, perhaps the
most important midterm elections of our lives will be taking place and AIDS
United wants to make sure that people living with HIV and the organizations who
serve them are prepared to get out the vote and effect change to the best of
their ability. To this end, AIDS United has created our own 2018
Election Resource Center, where you can learn everything you need to know
about getting yourself and others to the polls, feeling confident in who and
what you’re voting for, and using the power of community and nonprofit HIV
service organizations to make sure that no one in America goes without the
health care they need. Click
here to check it out.
Posted By: AIDS United, Policy Department - Friday, June 08, 2018
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