U.S. Supreme Court

DOJ argues entire health care law must be struck down

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The U.S. Department of Justice is arguing that the Affordable Care Act must be struck down in its entirety because of Congress’ decision to lower the tax penalty to zero for failure to carry health insurance.

The DOJ’s June 25 brief, filed with the U.S. Supreme Court, argues that the law’s mandate for individuals to buy health insurance can no longer be interpreted as a tax. As a result, the Supreme Court’s 2012 decision upholding the law under Congress’ taxing power no longer applies.

The National Law Journal, the New York Times and the Washington Post have coverage.

Besides requiring individuals to carry insurance, the Affordable Care Act has several protections. The law bars insurers from denying coverage to people with preexisting conditions; bars insurers from charging more money because of a person’s risk profile; allows children to have coverage through their parents’ policies until age 26; guarantees “essential benefits” that include mental health, maternity and drug coverage; and expands Medicaid.

If there was no mandate to carry health insurance, Congress would not have wanted provisions of the law to stand that protect preexisting conditions and ban higher charges based on risk, the DOJ brief argues.

Congress had concluded that people would wait to buy health insurance until they needed care if there was no coverage mandate, the brief says. By increasing health insurance coverage, the law broadened the health insurance risk pool to include healthy people.

Without the tax penalty, the coverage requirement and the ban on higher rates, Congress would have not enacted other protections in the law, the DOJ says.

The Supreme Court accepted the case in March. A group of states led by Texas had opposed Supreme Court review after the 5th U.S. Circuit Court of Appeals at New Orleans ruled in their favor in their legal challenge.

The 5th Circuit had struck down the individual mandate and remanded for a decision on whether other aspects of the law can remain in effect.

Oral arguments before the Supreme Court are likely to take place in the fall, according to the New York Times.

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