In a brief filed in a federal court in Texas, the department said a tax law signed previous year by President Donald Trump that eliminated penalties for not having health insurance rendered the so-called individual mandate under Obamacare unconstitutional.
Attorney General Jeff Sessions said it is "a rare case" for the Justice Department not to defend provisions of a law but added that he could not find any "reasonable arguments" to support their constitutionality. But it did say Thursday that because the individual mandate is unconstitutional, so is another, more popular part of the law: protections for people with pre-existing conditions.
She cited a report from health care think tank Kaiser Family Foundation that estimates more than 52 million Americans have pre-existing health problems that would "likely leave them uninsurable" if it weren't for the Affordable Care Act's regulations. Already, Democratic candidates in the midterm elections had been playing up their party's role in blocking last year's repeal efforts and their recent success in pushing for the expansion of Medicaid in two more states.
"The pre-existing condition thing is what the ads will be run on", said Blendon.
Chief Justice Roberts, who wrote the majority opinion in NFIB v. Sebelius, rejected the Obama administration's claim that Congress could impose the individual mandate pursuant to the Constitution's Commerce Clause. It's unlikely that the entire law will be struck down.
The Trump administration Thursday did not go that far. The guarantee that people should be able to buy insurance regardless of their health history has been a popular provision of the divisive law - one that President Trump has praised, calling the law's prohibition on denying insurance to sick people "one of the strongest assets" of the Affordable Care Act in a "60 Minutes" interview before he took office. Texas wants the provision of the ACA requiring individuals to have health insurance declared unconstitutional. The filing is part of a lawsuit brought by the state of Texas and a coalition of other Republican-led states that are challenging Obamacare's constitutionality.
Legal specialists also point out that the Trump administration's failure to defend the federal health law could have long-lasting implications for the rule of law in the nation.
In a statement, America's Health Insurance Plans, a leading trade group, predicted the Trump administration's decision could lead to difficultly for insurers setting rates, a patchwork of state insurance requirements, and higher rates for older and sicker Americans.
Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate a year ago, also expressed concern about the administration's new push, saying it "creates further uncertainty that could ultimately result in higher costs for millions of Americans and undermine essential protections for people with pre-existing conditions, such as asthma, cancer, heart disease, arthritis and diabetes". "Congress has now kicked that flimsy support from beneath the law".
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John McCain who responded with a very different message for USA allies: "Americans stand with you, even if our president doesn't". Trudeau said the communique has "strong commitments about the actions we are going to take".
This current lawsuit, led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel, argues that since Congress has changed the law to remove the penalty forcing individuals to get insurance, it has inadvertently rendered the rest of the law impermissible, under the 2012 Supreme Court ruling. "At the worst it could strip away guaranteed coverage for those with pre-existing conditions".
In May, the court allowed more than a dozen state attorneys general, all Democrats, to "intervene" in the case and defend the law.
"For three such respected DOJ attorneys to do so simultaneously - just hours before a major filing, and without replacement by any other career lawyers other than a rookie - is simply flabbergasting". Chris Murphy, D-Conn., said in a statement.
And Tim Hogan, a spokesman for Health Care Voters, a Democratic group looking to mobilize voters on the health care issue, called the decision a "blatant sabotage of the Affordable Care Act" and "something Republican members of Congress will have to explain to their constituents". But the Department of Health and Human Services could, in theory, create exceptions to those rules or rewrite them in way that could upend coverage for some consumers midyear, Levitt said.
"It's highly unlikely NY would take away consumer protections it has put in place", said a spokeswoman for the state Health Plan Association.
The lawsuit could easily go all the way to the Supreme Court before there is a resolution, which could take years.
The states' challenge to the overall ACA has been pending since February in the Fort Worth court of U.S. District Judge Reed C. O'Connor.
The Texas case will be decided first by O'Connor, a conservative appointee of President George W. Bush.