President Donald Trump’s administration told the Supreme Court the Affordable Care Act is invalid, including its protections for people with preexisting conditions.
Filing a brief late Thursday in a case the court is set to hear around the time of the November election, the administration said “the entire ACA thus must fall” because of a tax law change made by the Republican-controlled Congress in 2017.
The administration is backing efforts by Republican-controlled states to invalidate the 2010 law, which is being defended by 20 other states and the District of Columbia. A federal appeals court found part of the measure unconstitutional and left doubt about the rest of it.
Trump’s presumptive opponent in the November election, Democrat Joe Biden, said earlier Thursday the president would let insurers drop coverage for people with asthma, diabetes, cancer and complications from COVID-19.
Trump is trying “to strip health coverage away from tens of millions of families, and to strip the peace of mind away from more than 100 million people with preexisting conditions,” Biden said at a campaign event in Lancaster, Pennsylvania.
Democrats hope to turn the lawsuit into a political anvil for incumbent Republicans this fall given the rising popularity of the ACA, which most Republicans have sought to repeal. On a media call Thursday, senior congressional Democrats said Republicans have no alternative to fully protect people with preexisting conditions or prevent tens of millions from losing their insurance.
The Democrats said it is especially harmful to try to overturn the law amid the pandemic, with tens of millions of people out of work and at risk of losing their employer health insurance.
“Republicans have universally said they are against the Affordable Care Act,” said House Majority Leader Steny Hoyer of Maryland. He dismissed Republican arguments that they support protecting preexisting conditions as “empty rhetoric.”
Senate Health Chairman Lamar Alexander, a Tennessee Republican, in 2018 called the lawsuit against the ACA, which also is known as Obamacare, “as far-fetched a legal argument as I think I’ve ever heard” with almost no chance of succeeding.
The legal fight stems from a provision known as the individual mandate, which originally required people to acquire health insurance or pay a tax penalty.
The Supreme Court upheld that provision in 2012, with Chief Justice John Roberts calling it a legitimate use of Congress’ taxing power. A Republican-controlled Congress later joined with Trump to zero-out the tax penalty, leaving the mandate without any practical consequences.
In the filing Thursday, U.S. Solicitor General Noel Francisco said, “The individual mandate no longer can be construed and upheld as a valid exercise of Congress’s taxing power because Congress eliminated the tax.”
The New Orleans-based 5th U.S. Circuit Court of Appeals said the mandate was unconstitutional without a tax penalty attached to it. The appeals court didn’t decide whether the rest of the law could stand, instead saying a federal trial judge should give that question closer scrutiny. The Democratic-run states, a group led by California, then went straight to the nation’s highest court.
The suit has proved awkward for GOP Sen. Susan Collins of Maine, who has come under fire from Democrats for voting for the 2017 tax overhaul that eliminated the mandate penalty, without which there would be no case.
Collins and other Republican senators have said they didn’t think they were imperiling the entire ACA or coverage of preexisting conditions protection with their vote.
All five justices who voted to uphold the ACA in 2012 — Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — remain on the court. Roberts switched sides in that case after voting to strike down the individual mandate when the justices took their initial private vote, according to news reports.
The Trump administration has repeatedly changed its stance on what beyond the individual mandate should be thrown out. The Justice Department originally said that only a few other provisions — including the protections for preexisting conditions — needed to be invalidated. The administration then shifted course and said the entire law should be voided.
The administration then changed positions a second time. The Justice Department told the appeals court the judgment should apply only in the 18 states challenging the law and cover just those provisions that “actually injure” those states. The administration’s brief pointed to anti-fraud provisions in the law as items that probably could be salvaged.
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