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Congress' move to leave Obamacare mostly intact may save law

Todd Ruger, CQ-Roll Call on Jun 18, 2018

Published in Health & Fitness

full article at:

WASHINGTON -- Congress killed off a key penalty in the 2010 health care law last year but left the rest of the law intact -- and that might prove pivotal to a lawsuit in which the Justice Department and 20 Republican-led states argue that the law's other major provisions must now be struck down.

That's because the federal courts will look at what Congress intended to accomplish regardless of what individual lawmakers wanted to do, according to a group of five law professors with deep experience in litigation over the health care law.

Congress used the 2017 tax overhaul to nix the penalty for most Americans who don't get health coverage starting next year while allowing other provisions to continue, such as those preventing insurance companies from denying coverage or charging more because of a consumer's pre-existing condition.

"All that matters here is that Congress eliminated the individual mandate penalties while leaving the rest of the statute intact," the law professors wrote.

Texas and 19 other states say in their lawsuit that getting rid of the penalty makes the mandate to buy insurance unconstitutional -- and the elimination of that central provision in turn means the remainder of the 2010 law "must also fall." They are seeking a preliminary injunction to stop the law.

The Justice Department has declined to defend the Obama administration's landmark law. The government argued that if the mandate falls, so must provisions that ban insurers from denying coverage or charging more because of a consumer's pre-existing condition.

The idea behind the DOJ and states' arguments is the legal concept known as severability. That means when one part of a law is found unconstitutional, courts look at whether the rest of the law should be struck down as well.

On Capitol Hill last week, the DOJ position drew rebukes from lawmakers such as Republican U.S. Sen. Lamar Alexander, chairman of the Health, Education, Labor and Pensions Committee, who called the Trump administration's argument "as far-fetched as any I've heard."

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