The Trump administration urged the Supreme Court to strike down the Affordable Care Act in its entirety in a new legal brief filed late Thursday night.
The government argued the landmark health care law must fall because Congress lifted the financial penalty for failing to purchase insurance in the 2017 tax reform bill. The Court will hear arguments in the case sometime this fall, meaning the law’s fate will be in question at the peak of the 2020 campaign.
The brief is at odds with the president’s own statements on health care reform and comes as the nation struggles to curb the transmission of the coronavirus. The Supreme Court’s decision could affect the health insurance coverage of millions as unemployment rolls swell. And while Trump has repeatedly vowed to protect people with preexisting conditions, that group will lose coverage if the Court sides with the government and strikes down the ACA. The law also provides coverage against viral infections like the coronavirus for over 20 million people. Millions more might qualify for a special enrollment period if they lose insurance due to the pandemic. Despite the obvious perils ahead of the November election—Attorney General William Barr urged the administration to modify its position as recently as May—the White House says it must follow the law.
“A global pandemic does not change what Americans know—Obamacare has been an unlawful failure,” White House spokesman Judd Deere said.
Presumptive Democratic presidential nominee Joe Biden ripped the Trump brief during a Thursday morning speech in southern Pennsylvania and promised to expand the ACA to include a public option.
The brief leaves vulnerable Americans “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,” Biden said.
The Supreme Court turned back a challenge to the individual mandate in 2012. A 5-4 Court led by Chief Justice John Roberts sustained the mandate on tax grounds but rejected arguments that it was a valid exercise of congressional power over commerce.
Republicans effectively rescinded the mandate in the 2017 Tax Cuts and Jobs Act, setting the financial penalty at zero. That prompted a lawsuit from a coalition of red states led by Texas. They argue the mandate can’t be upheld as a tax if it isn’t making the government any money. Nor can the rest of the law be salvaged, they say, since the mandate and two other key provisions are essential to the ACA’s design. In legal parlance, that issue is called “severability.”
The Trump administration is backing that position before the justices.
“Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these three integral provisions,” the Trump brief reads. “The entire ACA thus must fall with the individual mandate.”
Blue states and congressional Democrats are defending the law. They counter that severability is a question of Congress’s intent. Here, they say it is obvious Congress meant for the ACA to remain in place since it rejected Trump-backed bids to repeal the law in various ways before settling on rescission of the mandate.
“The resulting statutory scheme establishes beyond any reasonable debate that Congress believed the ACA could stand—and intended it to stand—in its entirety without the unenforceable coverage requirement,” lawyers for the state of California wrote in a May filing.
A federal trial judge in Texas sided with the red state plaintiffs, and the Fifth U.S. Circuit Court of Appeals upheld that decision in part. The High Court agreed to hear the case in March. A decision is expected by the spring or summer of 2021.
The cases are No. 19-840 California v. Texas and No. 19-1019 Texas v. California.