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The US Department of Justice has announced it will not defend the United States in a court case filed by twenty state Attorneys General (including Wisconsin’s) that says the Affordable Care Act is unconstitutional. The move has no immediate impact on the law or our members, and it will take a while for the case to play out in court.

You might be thinking, “Didn’t the Supreme Court already decide that Obamacare is constitutional?” The answer is yes. But the Supreme Court based that ruling on the belief that the government has the power to impose a tax on people who don’t have health insurance. In other words, the law was found constitutional because of the tax imposed under the individual mandate.

Then as part of the tax bill passed in late 2017, Congress zeroed out the tax on people who don’t have health insurance as of January 1, 2019. Now, Republican state Attorneys General claim that the entire law must be tossed out because the individual mandate is unconstitutional. The defendant in that case is the United States, and the US Justice Department is refusing to stand up for it.

In a letter to Speaker Ryan stating its position, the Justice Department also says that it does not agree that the entire law should be tossed out. Instead, it says that only the individual mandate and related consumer protections should also be eliminated.

What are these consumer protections? The Justice Department specifically names two:

Guarantee Issue: This is the provision of the Affordable Care Act that says that insurance companies cannot deny coverage to people with pre-existing health conditions; and

Community Rating: This is the provision of the Affordable Care Act that requires everyone that is the same age in the same geographic area to pay the same amount for health insurance. Without it, people who are sicker will pay more.

State Democratic Attorneys General say they will defend the case instead of the Justice Department. So the case is certainly not a slam dunk.

Our view on this latest move is consistent with our past positions on efforts to repeal Obamacare in whole. We believe our lawmakers have to focus on fixing the issues instead of tossing the entire law or even substantive provisions of the law. Let’s do this the right way and work on common sense, comprehensive reforms that get to the cost of health care. Let’s not blow up the bridge without building a better one first.
Follow this with us on our Knowledge to Action page.

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