The Justice Department said in a court filing late Thursday that it will no longer defend key parts of the Affordable Care Act, beginning with the unpopular requirement that people carry health insurance, but also including widely-supported provisions that guarantee access for people with pre-existing medical problems and limit what insurers can charge older, sicker adults.
The states argue that now that Congress repealed the penalty for not having coverage in the tax bill a year ago, ObamaCare's individual mandate can no longer be upheld as a tax, and that it therefore should be invalidated.
The Justice Department does not join the 20 states in the lawsuit in saying that this invalidates the entire law.
The Justice Department thus claims that the individual mandate is unconstitutional as of January 1.
But it said the rest of the law, including Medicaid expansion, can remain in place.
However, the Trump administration believes the provision of the ACA guaranteeing affordable rates to those with pre-existing conditions must be thrown out with the individual mandate.
"So far as I can make out, the Trump administration will continue to enforce the ACA while the litigation progresses", Nicholas Bagley, an assistant professor who specializes in health law at the University of Michigan Law School, wrote Friday in a posting on the Incidental Economist site. As a result, the entire remainder of the ACA must be upheld, even if the court finds the mandate unconstitutional. However, he said, Bailey opposes the individual mandate and wants less government regulation of health insurance.
"The Trump administration once again is allowing premiums to go up and middle class Americans to pay more", Senate Minority Leader Chuck Schumer said in a tweet. "The Trump Administration is perpetuating the same cruel vision of higher costs and less coverage that House Republicans voted for in the monstrosity of Trumpcare".
Mark Showalter, chairman of the Department of Economics at BYU, contended that although protections for people with pre-existing conditions is a well-liked part of the law and the individual mandate penalty was considered deeply unpopular, the provisions are two sides of the same coin.
"It would be essentially a return to what the individual market looked like before the ACA, where insurers would require applicants to fill out long questionnaires about their medical histories, and make decisions based on people's health and how much to charge", said Larry Levitt, a senior vice president at the Kaiser Family Foundation.
The takeaway for consumers: This shouldn't deter people from seeking health insurance. "The brief filed by the Trump Administration yesterday represents a shocking break from precedent, and relies on legally dubious, partisan claims to argue against the constitutionality of the current law", they said in a joint statement.
More recently, the White House and Department of Health and Human Services have been working to make it easier for consumers to buy relatively affordable health plans that exclude some of the benefits the ACA requires.
While the case has to play out from here, the administration's striking position raises the possibility that major parts of the law could be struck down - a year after the Republican Congress failed at attempts to repeal core provisions.