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Trump administration asks Supreme Court to strike down Obamacare

The Washington Post logo The Washington Post 6/26/2020 Tim Elfrink, Meagan Flynn
Donald Trump wearing a suit and tie: President Trump and Polish President Andrzej Duda participate in a joint press conference in the White House Rose Garden on Wednesday. © Jabin Botsford/The Washington Post President Trump and Polish President Andrzej Duda participate in a joint press conference in the White House Rose Garden on Wednesday.

The Trump administration asked the Supreme Court late on Thursday to overturn the Affordable Care Act, telling the court that “the entire ACA must fall.” The administration’s argument comes as hundreds of thousands of Americans have turned to the government program for health care as they’ve lost jobs during the coronavirus pandemic.

House Speaker Nancy Pelosi (D-Calif.) responded to the brief by saying there is “no moral excuse for the Trump Administration’s disastrous efforts to take away Americans’ health care." Dismantling the ACA would leave more than 23 million people without healthcare plans, according to a recent analysis by the liberal-leaning think tank Center for American Progress.

“President Trump and the Republicans’ campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty,” Pelosi, who on Wednesday filed a bill to expand the ACA, said in a statement.

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The administration’s brief was filed in support of a challenge to the ACA by a coalition of Republican attorneys general, following through on Trump’s pledge last month to overturn President Obama’s landmark healthcare legislation.

The filing came the same day that a government report showed nearly half a million Americans turned to the ACA in April and May amid covid-19′s economic devastation. According to the Thursday report from the Centers for Medicare and Medicaid Services, 487,000 Americans took advantage of the special enrollment period on Healthcare.gov after losing their healthcare plans, likely among the millions of Americans who lost their jobs during the pandemic. The numbers mark a 46 percent increase from enrollments in April and May 2019.

Former vice president Joe Biden, the presumptive Democratic nominee, said during a campaign trip in Pennsylvania on Thursday that axing the healthcare law as the nation is still reeling from the pandemic would amount to a double whammy for covid-19 survivors. He worried insurers would view covid-19 as a preexisting condition, and without the ACA, would be free to deny survivors coverage.

“Those survivors, having struggled and won the fight of their lives, would have their peace of mind stolen away at the moment they need it most,” Biden said. “They would live their lives caught in a vise between Donald Trump’s twin legacies: his failure to protect the American people from the coronavirus, and his heartless crusade to take health-care protections away from American families."

White House spokesman Judd Deere brushed aside concerns that dismantling Obamacare could worsen the pandemic crisis, saying in a statement to The Post, “A global pandemic does not change what Americans know: Obamacare has been an unlawful failure and further illustrates the need to focus on patient care.”

Deere added, “The American people deserve for Congress to work on a bipartisan basis with the President to provide quality, affordable care.”

Oral arguments are scheduled for next term but it’s unclear if they’ll happen before the election. A decision in the case may not come until 2021.

Trump has said he wants to protect health care coverage for Americans with preexisting conditions, which a White House spokesman reiterated Thursday night. But the administration has not presented any plan showing how it would accomplish that, and the Justice Department’s Thursday brief takes the opposite position.

In the brief, Solicitor General Noel J. Francisco argues that all of the ACA should be struck down because one of its core provisions, the individual mandate, is unconstitutional, rendering the rest of the law invalid as well.

Francisco argues that the individual mandate provision became unconstitutional when Congress reduced penalties to zero in 2017. Without any remaining tax penalty, Francisco argued, the provision could no longer be considered a constitutional use of Congress’s taxing power — the reason the Supreme Court upheld it in a previous challenge.

He argued that the provisions protecting Americans with preexisting conditions or high-risk medical histories are “inseverable” from the individual mandate, and therefore should be struck down with it.

“Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these ... integral provisions," he wrote. “The entire ACA thus must fall with the individual mandate.”

As The Washington Post reported last month, even some within Trump’s administration, including Attorney General William P. Barr, had urged a less aggressive position against the ACA, fearing that advocating for its total elimination would backfire against Republicans in the election.

The administration previously supported preserving the law’s more popular provisions, such as the guaranteed coverage for those with preexisting conditions, but adopted a more stringent stance following a ruling from a Texas federal judge gutting the entire law. The ruling by U.S. District Judge Reed O’Connor, which reflected the position laid out by Francisco on Thursday, was put on hold as the case remains under review and now rests with the high court.

California Attorney General Xavier Becerra, who is leading a coalition of states battling to protect the ACA, said Thursday night that as more Americans die of covid-19, “this fight comes at the most crucial time.”

“The ACA has been life-changing and now through this pandemic, we can all see the value in having greater access to quality healthcare at affordable prices,” Becerra said in a statement. “Now is not the time to rip away our best tool to address very real and very deadly health disparities in our communities.”

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