The Trump administration argued to the Supreme Court late Thursday that the entire Affordable Care Act “must fall.”
The Justice Department brief was submitted as unemployment surges across the country and hundreds of thousands of Americans turn to the government program to provide much needed health care as they lose work-sponsored health insurance plans amid the coronavirus pandemic. The Justice Department is supporting a lawsuit brought by several red states, and so far, lower courts have ruled in favor of the arguments against the ACA.
The case, which could be heard before the election, stands to be not only a major issue in the presidential race, but also puts congressional Republicans on the spot, as they have for years struggled to come up with an Obamacare replacement.
House Speaker Nancy Pelosi (D-CA) said in a statement that there is “no moral excuse” for the Trump administration’s efforts to tear down the ACA. She called the administration’s position an act of “unfathomable cruelty” amid the pandemic, which threatens the health of many Americans who had already been devastated with large economic losses as the virus shut down American cities. If the justices agree to discard the program, it would leave more than 23 million people uninsured, according to the Washington Post.
In the government’s brief, U.S. Solicitor General Noel Francisco argued that because a core provision of the program is unconstitutional, the program is effectively invalid as a whole. His claim rests on the notion that an “individual mandate” for people to buy health insurance is no longer valid since Congress eliminated a penalty for non-compliance in 2017.
“The entire ACA thus must fall with the individual mandate,” the solicitor general wrote.
The brief also pushed to get rid of pre-existing condition rules which stop insurers from refusing patients or charging them higher rates for things like age, gender and health status. The position contradicts Trump’s claim to protect people with pre-existing conditions.
Trump’s effort to dismantle the ACA appear to be part of a rush to make good on his 2016 campaign promise to overturn the program and undermine the achievements of his predecessor. Trump’s move to repeal the ACA fell short in Congress in 2017. It’s unclear if his chances are much better now as five of the justices who upheld the program against a constitutional challenge in 2012 are still on the court.
The Justice Department’s handling of the case has raised alarm bells for several reasons, not the least of which is because it is refusing to defend the law. When the department first became involved in the case, it staked out a narrower opposition to the ACA and argued that only its market reforms and pre-existing condition protections should be invalidated with the mandate. Last year, reportedly at the behest of White House aides, the Justice Department expanded its position to argue for a full dismantlement of the law.
Just last month, the administration was still debating internally whether that broad argument was too much of a political risk, given the pandemic.
The latest brief suggests the court could still opt ultimately to narrow its approach to striking down the law by limiting the “scope” of its relief to the ACA provisions as they injured the case’s challengers. This puts some daylight between the DOJ and the red states, which are being led by Texas. Texas in its brief Thursday argued that anything less than a nationwide injunction on the law would be unworkable.
Trump’s attack on the law comes as more than 120,000 Americans have died from COVID-19, with nearly 2.5 million confirmed cases that continue to climb with new daily records set in states like Arizona, Texas and Florida.
Ahead of the upcoming presidential election, Democratic nominee Joe Biden who was vice president when the ACA became law has named health care and expanding the ACA as a key campaign issue. Trump has not proposed an alternative to the ACA if the Supreme Court agrees to strike it down.
Tierney Sneed contributed to this story.
