For 18 months, the Trump administration has routinely and aggressively threatened the Affordable Care Act and the tens of millions of Americans for whom it provides health care coverage, but their attacks had remained largely in the province of Executive Orders weakening regulations or demands to Congress. That all changed on Thursday night when the Trump administration said that it would not defend the Affordable Care Act in court in the case of a lawsuit filed by 20 Republican-led states, Texas vs. United States, claiming that the health care law is unconstitutional.
In a letter penned by Attorney General Jeff Sessions, the administration declares that it will not defend the existing law of the land contained within the ACA and will instead side with the plaintiffs in the contention that it is unconstitutional to require most Americans to have health insurance and that, by extension, any mandated protections in the ACA preventing insurance companies from discriminating against people living with pre-existing conditions are no longer valid.
"After careful consideration, and with the approval of the President of the United States, I have determined that ... the Department will not defend the constitutionality of 26 U.S.C. 5000A(a), and will argue that certain provisions of the Affordable Care Act (ACA) are inseverable from that provision", writes Attorney General Sessions in the letter to House Speaker Paul Ryan (R-WI), referring to the section of the ACA that requires most Americans maintain minimum essential coverage.
Unlike the plaintiffs in Texas vs. United States, the Trump administration does not argue that the individual mandate is "inseverable" from the ACA as a whole, but rather contending that it is only inextricably linked to those provisions which "guarantee issuance of coverage in the individual and group market" and those "prohibiting discriminatory premium rates."
While Attorney General Sessions tries to justify his actions by pointing to prior executive branch actions, this decision by the Department of Justice to pick and choose which laws it views as constitutional and, as a result, which ones it will defend in court, is truly unprecedented and represents a level of executive overreach that is stunning even by any standard.
"If the Justice Department can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books", writes University of Michigan law professor Nicholas Bagley. "That's as flagrant a violation of the President's constitutional duty to take care that the laws are faithfully executed as you can imagine."
The potential effects of the Trump administration's decision are as devastating as anything that would have resulted from Congressional Republicans attempts at repealing the ACA last year. In addition to removing protections from health insurer discrimination and outright denial of coverage based on pre-existing conditions, including HIV, the position being advocated by the DOJ would cause havoc in insurance markets at a time when insurers are filing their rates with state regulators for the coming year would be staggeringly destabilizing.
Should the plaintiffs -- and by extension the Trump administration -- win their case in district court, it would likely wind up making its way back to Supreme Court, setting up a second round of deliberations on the ACA's constitutionality by the country's highest court that is made possible by the recent GOP tax bill, which eliminated the federal tax on people without health insurance. It is worth noting that, in his 2010 majority decision declaring the ACA constitutional, Chief Justice Roberts declared that the federal government doesn't have the power to mandate people buy health insurance, but that it does have to power to tax individuals who do not have health insurance.
The possible impact of this decision on people living with and affected by HIV is as immense as it is harmful. Few portions of the American population faced the degree of institutional discrimination and denial of health insurance coverage as people living with HIV and with the myriad related health conditions that can come with it. This decision by the Trump administration to selectively defend the rule of law and to prioritize the pocketbooks of insurance companies and their shareholders over the very lives of people living with and affected by HIV is unconscionable. We at AIDS United will not rest until we have once again helped derail this administration's attempt to rip health care away from the HIV community and we will keep you abreast of developments in this case as they happen.
As this attack on the health care of millions by the Trump administration shows, elections have consequences. In 5 months, perhaps the most important midterm elections of our lives will be taking place and AIDS United wants to make sure that people living with HIV and the organizations who serve them are prepared to get out the vote and effect change to the best of their ability. To this end, AIDS United has created our own 2018 Election Resource Center, where you can learn everything you need to know about getting yourself and others to the polls, feeling confident in who and what you're voting for, and using the power of community and nonprofit HIV service organizations to make sure that no one in America goes without the health care they need. Click here to check it out.
[Note from TheBody: This article was originally published by AIDS United on June 8, 2018. We have cross-posted it with their permission.]