Saturday, June 09, 2018
The Trump administration on Thursday officially threw its support behind a new, seemingly far-fetched legal challenge to the Affordable Care Act, arguing that the law's protections for people with pre-existing conditions are unconstitutional. The lawsuit, now before a federal district judge in Texas, comes from officials in 20 conservative states. And its prospects for success look slim. The Supreme Court has already rejected two legal challenges to the law, the second on a 6-3 decision that came with a strongly worded ruling from Chief Justice John Roberts. State attorneys general will step in to defend the law from this new challenge. And they will not have difficulty making their case.
The lawsuit's key argument is that Congress intended for the pre-existing condition protections to work in tandem with the law's individual mandate, the provision that people have insurance or pay a penalty. Now that Congress has decided to zero out the penalty, as Republicans did last year as part of the 2017 tax cut, the pre-existing conditions have to go, too.
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).
The problem, many scholars have noted, is that Congress has taken action since it passed the Affordable Care Act leaving pre-existing protection in place even as it reduced the individual mandate penalty to zero. Whether or not that was a smart policy move, it is clearly what Congress intended ― and Congress gets to make those kinds of decisions.
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