In a rare move, Attorney General Jeff Sessions has chosen to have the Department of Justice (DOJ) argue in court for the unconstitutionality of parts of a federal statute, the Affordable Care Act, also known as Obamacare.
The DOJ responded in the federal District Court for the Northern District of Texas on June 7 to a lawsuit filed by Texas, joined by 19 other states, that argues that the act is unconstitutional.
Normally, the DOJ defends the constitutionality of federal law, but, in a letter to Speaker of the House Paul Ryan, Sessions lays out his reasoning for not defending the act.
Sessions’s argument turns on the status of the penalty the act has imposed on those who do not purchase health insurance. This penalty was enacted to compel individuals to purchase insurance, which is called the individual mandate.
In a 2012 Supreme Court decision, Justice John Roberts argues that this penalty was in fact a tax and, on that basis, he upheld as constitutional the individual mandate to purchase health insurance, and with it, the constitutionality of the law itself.
Sessions notes that the Tax Cuts and Jobs Act—the tax cut bill passed in December 2017—repealed the penalty in the act, effective January 2019. Sessions says he is following the Supreme Court by now regarding the individual mandate as unconstitutional since its constitutionality depended on the tax (or penalty) associated with it.
In addition, Sessions follows arguments made by the DOJ in 2012 before the Supreme Court that two provisions in the act are inseparable from the individual mandate: guaranteeing issuance of insurance coverage and prohibiting discriminatory premium rates.
These are inseparable from the individual mandate because “otherwise, individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else,” Sessions writes.
If this guarantee and prohibition are found unconstitutional, then the protections for those with preexisting conditions offered by the act will be repealed.
These protections are one of the most popular features of the act, but some critics have contended that they distort the health insurance market. Other measures, such as state-administered risk pools, would offer such protections more efficiently, critics say.