Sherman: Workgroup anticipated DOJ failing to defend ACA

U.S. ATTORNEY GENERAL JEFF SESSIONS Interviewed Special Counsel during an Oct 18 2017 hearing. Sessions has declined to defend the ACA individual mandate in a recent lawsuit seeking to overturn the law. / COURTESY

PROVIDENCE — The U.S. Department of Justice has declined to defend the Affordable Care Act’s individual health insurance mandate in Texas v. United States which seeks to overturn the ACA, but the Market Stability Workgroup’s recent recommendations anticipate Executive Branch antipathy to the law.

The DOJ is also declining to defend ACA protections prohibiting charging more for or denying care for pre-existing conditions.

Attorney General Jeff Sessions explained the rationale behind the decision in a June 7 letter to Speaker of the House Paul Ryan. Sessions referenced the U.S. Supreme Court’s decision in the 2011 case “National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services,” upholding the legality of the individual mandate so long as it generated revenue for the government, and was thus a feature that could be regulated.

“Beginning in 2019, however, Section 5000A(a) will produce no revenue for the Government. As a result, the NFIB Court’s saving construction  will no longer be available,” Sessions wrote.

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Sessions noted that although the Executive Branch has a longstanding tradition of defending the Constitutionality of federal statutes, this is rare case that allows the Department of Justice to decline to defend the law.

Sessions added that the provisions of the law “prohibiting discriminatory premium rates,” and “guaranteeing issuance of coverage in the individual and group market,” are also unconstitutional, but would defend the rest of the law.

HealthSourceRI Director Zachary W. Sherman noted recent recommendations to Gov. Gina Raimondo by the Market Stability Workgroup were made with the possibility of Executive Branch efforts to undermine the ACA in mind. While the Workgroup didn’t discuss Texas v. United States directly, the final recommendations include language regarding careful study of putting ACA protections into state statute.

“Regarding the lawsuit, it is important to note that the shared responsibility requirement, also known as the individual mandate, was not repealed by Congress,” said Sherman. “They eliminated the penalty for not complying starting in 2019, but did not change, modify or eliminate the requirement itself. This mandate, the consumer protection requiring insurers to cover pre-existing conditions and the financial assistance available to help low and middle income Americans, remain intact under the Affordable Care Act. The Intervenor-Defendant States in TX v. HHS, which include Rhode Island, continue to be actively involved in the litigation process.

Sherman also said that, “Yesterday, the State filed its brief in opposition to the Plaintiff’s Motion for Preliminary Injunction. The State will continue to stand up for Rhode Islanders to protect access to high quality, affordable health coverage as provided for under the Affordable Care Act.”

Rob Borkowski is a PBN staff writer.

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