And though the federal government will apparently no longer defend a pillar of the law, a group of left-leaning states have stepped in to back it in court. This is hysterical nonsense.
"Congress is always free to amend its statutes, even to omit what it previously thought was essential", writes Nick Bagley, a law professor at the University of MI, in a Thursday evening blog post. Attorney General Jeff Sessions wrote a letter to House Speaker Paul Ryan explaining that this is a "rare case" that warrants deviating from the Justice Department's "longstanding tradition of defending the constitutionality of duly enacted statutes". Other parts established rules for major medical plan benefits summaries, provided funding for geriatric care provider education programs, and moved to lower out-of-pocket costs for people who have Medicare Part D prescription drug plan coverage and high prescription bills.
Texas and its allies have asked the court, in Texas et al. v. United States of America et al. Ultimately, the case may be heading for the Supreme Court. That decision contained the seeds of Obamacare's destruction. That ruling hinged on the reasoning that, while the government "does not have the power to order people to buy health insurance", as Chief Justice John Roberts wrote for the majority, it "does have the power to impose a tax on those without health insurance". Trump extolled passage of the tax reform package as it nears, and celebrated the repeal of the Obamacare individual mandate included in the tax package. It is certainly clear that in zeroing out the individual mandate penalty in 2017, Congress did not mean to bar people with preexisting conditions from insurance.
The Patient Protection and Affordable Care Act...as recently amended, forces an unconstitutional and irrational regime onto the States and their citizens. The guarantee that people should be able to buy insurance regardless of their health history has been a popular provision of the divisive law - one that President Trump has praised, calling the law's prohibition on denying insurance to sick people "one of the strongest assets" of the Affordable Care Act in a "60 Minutes" interview before he took office.
Q: But that's just one tax provision, right? "That's what Congress did when it zeroed out the mandate".
Congress previous year struck down only the tax penalty enforcing the individual-insurance mandate, and left the rest of the law intact. But the lawsuit argues that since the mandate can no longer raise any revenue, the mandate itself is now unconstitutional - and so is the entire ACA.
This claim is based on two features of the law's text: It contains no severability clause - standard language to the effect that the statute would remain valid even if one or more of its provisions proved to be in violation of existing law - and its explicit assertion that the ACA can not function without the individual mandate.
The news rallied defenders of the law into action and raised questions among legal scholars about the likelihood it would succeed. However, in NFIB v. Sebelius the Obama DOJ argued that the mandate was not severable from two of the law's crucial provisions - guaranteed-issue and community rating.
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"What the states are really trying to do is bootstrap a claim against other parts of the law, and there's absolutely no basis for this", Adler said in an e-mail.
Health care ranked as the top issue for voters in a a national NBC/Wall Street Journal poll released Thursday, and among those for whom it was the most important factor in their vote, a striking 67 percent prefer a Democratic-controlled Congress.
This is a huge deal... the administration's behavior sets a risky precedent about the obligation of this and future presidents to follow their constitutional duty to faithfully execute the laws enacted by Congress....
This kind of hypocrisy isn't likely to have much effect on the outcome of the case, however.
The states' challenge to the overall ACA has been pending since February in the Fort Worth court of U.S. District Judge Reed C. O'Connor. Consequently, he has been the victim of the usual attacks in the media.
AHIP said it will file an amicus brief in support of the law that "provides more detail about the harm that would come to millions of Americans if the request to invalidate the ACA is granted in whole or in part".
Defenders of Obamacare blasted DOJ's move. "I don't even understand what the legal argument would be", said Rep. Leonard Lance, R-N.J., one of the most endangered Republican incumbents in the midterms.
The lawsuit argues the individual mandate was a central component of the Affordable Care Act, inseparable from its other provisions, and that as a result its unconstitutionality requires the entire law to be struck down. In the end, Obamacare is just indefensible.