Justice Dept. Says Crucial Provisions of Obamacare Are Unconstitutional

WASHINGTON — The Trump administration told a federal court Thursday that it would no longer defend crucial provisions of the Affordable Care Act that protect consumers with pre-existing medical conditions.

Under those provisions of the law, insurance companies cannot deny coverage or charge higher rates to people with pre-existing medical conditions.

The Justice Department said the provisions were part of an unconstitutional scheme that required most Americans to carry health insurance.

In a court case filed by Texas and 19 other states, the Justice Department said the requirement for people to have insurance — the individual mandate — was unconstitutional.

If that argument is accepted by the federal court, it could eviscerate major parts of the Affordable Care Act that remain in place despite numerous attacks by President Donald Trump and his administration.

A decision is months away, however, and appeals of any decision could take many more months.

The Supreme Court upheld the individual mandate in 2012 as an exercise of the government’s power to tax. But since Congress repealed the tax last year, the mandate and the law’s consumer protections can no longer be justified, the Justice Department said.

The mandate cannot be interpreted as a tax “because it will raise no revenue as Congress has eliminated the monetary penalty,” the department said in a brief filed in U.S. District Court in Fort Worth.

Brad Woodhouse, the director of the Protect Our Care Campaign, an advocacy group that supports the health law, said the Justice Department’s position threatened to “steal coverage from millions of Americans.” It is, he said, Trump’s “most dangerous sabotage effort yet.”

Even though the Justice Department is not defending crucial provisions of the law, California and 15 other states have intervened in the court proceeding, and they filed a brief Thursday defending the law, including its consumer protections.

The Justice Department said the protections for people with pre-existing conditions were inseparable from the individual mandate and must also be struck down.

But it did not go as far as Texas and the other states, which argued that all of the Affordable Care Act and the regulations issued under it were now invalid.

The 2010 health care law includes many other provisions, such as the creation of health insurance marketplaces, premium subsidies for low- and moderate-income people and expansion of the Medicaid program, as well as changes in Medicare and public health services.

The Justice Department did not challenge these provisions of the law. Indeed, it said, they can continue to operate without the individual mandate.

By contrast, the department said, the Supreme Court held that the individual mandate was “closely intertwined” with the requirement for insurers to offer coverage to all consumers at the same basic prices, regardless of their health status.

Attorney General Jeff Sessions sent a letter to congressional leaders Thursday notifying them that he would not defend the constitutionality of the individual mandate or the requirement for insurers to sell insurance to all applicants at standard rates — the “guaranteed issue” and “community rating” provisions.

The Justice Department has a long tradition of defending statutes enacted by Congress, regardless of whether it supports the policies reflected in those laws.

But, Sessions said, this is “a rare case” in which the Justice Department has decided not to defend certain provisions of a law, because he could not find any “reasonable arguments” to support the constitutionality of these provisions.

Earlier on Thursday, three career lawyers at the Justice Department who had been working on the Texas case abruptly withdrew from the litigation.

Brett A. Shumate, a Trump administration political appointee in the civil division of the Justice Department who has played a leading role in defending the White House in a range of lawsuits, has joined the team handling the Texas case.