Health Law

In 'major shift,' Department of Justice argues entire Affordable Care Act should be struck down

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The U.S. Department of Justice told a federal appeals court Monday evening that it agrees with a federal judge who struck down the entire Affordable Care Act as unconstitutional.

The DOJ stance is a “major shift” from its position when Jeff Sessions was attorney general, CNN reports. Lawyers under Sessions had argued that only parts of the Obama-era health care law were unconstitutional after Congress effectively repealed its tax penalty in 2017 for people without insurance. Other publications with articles include the National Law Journal, the Washington Post and Politico.

The U.S. Supreme Court had upheld the law’s individual mandate in 2012 under Congress’ taxing power.

After Congress reduced the tax penalty to zero, Sessions had refused to defend the law’s requirement for individuals to buy health insurance, known as the individual mandate. He had also refused to defend provisions that ban insurers from denying coverage or charging more to people with pre-existing conditions.

But in a letter filed with the 5th U.S. Circuit Court of Appeals at New Orleans, DOJ lawyers said the appeals court should affirm a decision striking down the entire law by U.S. District Judge Reed O’Connor of Fort Worth, Texas. O’Connor had ruled in December that the elimination of a tax penalty made the entire law invalid. He did not enjoin the law, however, while his decision was appealed.

According to CNN, the new stance “doubles down on stripping away all the protections that were a hallmark of the landmark heath reform law.”

The DOJ’s new stance would strike down additional provisions that allow children to have coverage on their parents’ policies until age 26 and that guarantee “essential health benefits” such as mental health, maternity and drug coverage. The stance also would eliminate an expansion of Medicaid and free preventive services for people on Medicare.

A coalition of states and House Democrats have intervened in the case and hired former U.S. Solicitor General Donald Verrilli to defend the law. He had successfully argued for the Obama administration in the 2012 Supreme Court case.

When pressed by Democrats about his stance on the health law, Attorney General William Barr had said during his confirmation hearing that he was open to reconsidering the DOJ’s position. But legal experts didn’t think he would take a more aggressive position against the law than Sessions, according to Politico.

See also: “Judge allows Affordable Care Act to remain in effect pending appeal of his decision” “ABA urges Senate not to weaken Medicaid through Affordable Care Act repeal bill” “Repealing and replacing Obamacare might not be as simple as Republicans thought”

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