In a brief filed in a federal court in Texas, the department said a tax law signed previous year by President Donald Trump that eliminated penalties for not having health insurance rendered the so-called individual mandate under Obamacare unconstitutional.
That would mean insurers would no longer be subject to "guaranteed issue" (a requirement that they sell policies to anybody, regardless of medical status) or "community rating" (a prohibition on charging higher premiums to people with pre-existing conditions).
Right before the United States submitted their court filing that agreed that parts of Obamacare are unconstitutional, attorneys Joel McElvain, Eric Beckenhauer, and Rebecca Kopplin filed a motion to withdraw their appearances as counsel for the federal government in this case (other attorneys who were already assigned to the matter are remaining). "As of 2019, therefore, the individual mandate will be unconstitutional under controlling Supreme Court precedent holding that 'the federal government does not have the power to order people to buy health insurance, '" the brief says.
The Texas-led lawsuit filed earlier this year claims that Congress' decision to eliminate the individual mandate penalty, which goes into effect in 2019, should render the entire health care law invalid.
Republicans on Capitol Hill had no advance warning that the administration was going to assert that protections for people with preexisting conditions is unconstitutional - a position that defies President Donald Trump's promises to maintain those protections.
"The pre-existing condition thing is what the ads will be run on", said Blendon.
An obscure district court lawsuit over the Affordable Care Act became a potent threat to one of the law's most popular provisions late Thursday, when the Justice Department filed a brief arguing that as of January 1, 2019, the protections for people with pre-existing conditions should be invalidated. "It's a cornerstone of what they do", he says.
For years, Republicans said they would protect people who suffer from preexisting conditions and were priced out of the individual market.
The filing was made in reaction to a lawsuit filed by Texas, 18 other states and the governor of ME, but the Administration stopped short of supporting all that those challengers are asking.
Democrats don't mind this comparison, in part because polls have shown that not only is health care a top issue for many voters, but it's an issue that helps Democrats.
Nicholas Bagley, a professor at the University of Michigan Law School who had been a Justice Department lawyer, says DOJ's move is troubling. But a year ago the Republican-controlled Congress eliminated those penalties as part of the $1.5 trillion tax overhaul that Trump signed in December.
One wrinkle that could keep the case alive, even if the states that oppose the ACA and the Trump administration want to resolve the case in favor of Texas and its allies, is that California, New York and other states that support the ACA have asked to intervene.
"In other words, people can once again be denied insurance because of pre-existing conditions or be charged more", Jost said.
Weighing in on a Texas challenge to the health law, the Justice Department argued that legally and practically the popular consumer protections can not be separated from the unpopular insurance mandate, which Congress has repealed, effective next year.
Just in case you haven't thought much about the individual mandate and the Constitution in the last six years, let me provide an update and a brief refresher.
If Democrats don't repeat that sentence a thousand times a day between now and November, they're nuts. "These are people who defend programs they disagree with all the time".
"This lawsuit is less about altering the law and more about blowing it up", Levitt said.
The Trump administration's stance is a rare departure from the Justice Department's practice of defending federal laws in court. If the court ends up siding with the Trump administration and the Republican states that brought the suit, the consequences would be significant, Perlman said. The administration's argument would also allow insurers to charge women, older people, and people in certain occupations higher premiums.
"Texans have known all along that Obamacare is unlawful and a divided Supreme Court's approval rested exclusively on the flimsy support of Congress's authority to tax", said Paxton when the suit was filed.
Maine Gov. Paul LePage signed his name onto the 20-state lawsuit as one of the plaintiffs in the case that, if successful, would gut pre-existing condition protections enshrined in the Affordable Care Act.
The National Institute of Mental Health estimates that more than 16 million Americans suffer from depression each year.