In a court filing late Thursday, the Trump administration is specifically urging the Texas federal court to strike down two provisions from the ACA: one that requires insurers to cover people with pre-existing conditions, and the other that prevents insurers from charging individuals a higher premium due to their pre-existing condition.
Late Thursday, the department said the health law's requirement that most Americans carry insurance will become unconstitutional next year and so will consumer protections forbidding insurers to deny coverage to sick customers or charge them more.
An NBC/Wall Street Journal poll released on Thursday - before the Trump administration decision was unveiled - found health care was the top issue for all voters and that it's an issue where Democrats have an overwhelming advantage. Insurers were not allowed to raise costs for people with pre-existing medical conditions.
On Thursday, the Trump administration clearly outlined their position on key - and popular - provisions in the Affordable Care Act, telling a court that the law should be invalidated and that the individual mandate is unconstitutional. "Our Constitution requires the executive branch to faithfully execute the laws passed by Congress", they wrote in a statement.
As many as 130 million adults under age 65 in the US have pre-existing conditions that could result in their not being able to get insurance coverage in the private market, according to the Department of Health and Human Services.
That penalty, Texas and the other conservative states argue, is so central to the law that without it, the rest can not stand.
The argument evokes Chief Justice John G. Roberts Jr.'s 2012 ruling upholding the constitutionality of the individual mandate as a valid use of Congress's taxing power.
President Donald Trump's legal team has made a move that could kill a key part of the Affordable Care Act, disrupt the individual major medical market in 2019, and leave most of the ACA intact.
Professor Nicholas Bagley, of the University of MI, says the case required the Trump administration to decide whether it will defend the ACA from constitutional attack.
"Zeroing out the individual mandate penalty should not result in striking important consumer protections", America's Health Insurance Plans said in a statement. He recently ruled that 16 other states and the District of Columbia could join in the case formally to defend the ACA against the challenge.
The Democrats further raised concerns that even if the Justice Department's arguments are unsuccessful, the administration's move could still "raise the cost of health care for most Americans, undermine the economy and weaken our democracy for years to come". Obviously, this is a lawsuit, and it could take months or even years to work its way through the courts. But the court will take notice that the Trump administration has switched sides.
The only things that the federal government is arguing with the states' about are 1) when those provisions needs to fall (the states want an injunction to end it immediately, while the feds argue that it should remain until January 1, 2019, when the repeal of the penalty actually goes into effect) and 2) whether the rest of Obamacare can remain (states say no, feds say yes). It will lead to "renewed uncertainty in the individual market" and a "patchwork of requirements in the states" and make it more challenging to offer coverage next year.
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.
Attorney General Jeff Sessions said in a letter to Congress that Trump, who campaigned on repealing the law and almost did so his first year in office, approved the legal strategy. And for those reasons, premiums are going up more next year than they would have otherwise.
"I am at a loss for words to explain how big of a deal this is", University of MI law professor Nicholas Bagley said in a blog post. By withdrawing from defending the law in court, the Trump administration is saying it no longer supports those consumer protections, which are popular with voters.
"Tonight, as the president and his administration launch their most unsafe sabotage effort yet, we are seeing just how far Republicans are willing to go in their quest to undermine the American health care system", said Brad Woodhouse, campaign director of Protect Our Care, an advocacy group staffed with many Obama administration alums. "Our coalition of states and partners across the country will fight any effort to strip families of their health insurance", he said.