Added uncertainty on ACA provision
Polls consistently show that Republicans and Democrats agree about the need to protect the health coverage of those Americans with pre-existing conditions. For all the division over the Affordable Care Act, both sides favor its provision barring insurers from denying coverage based on a person’s health status or medical history.
Which makes a decision of the Justice Department last week most disappointing. Jeff Sessions, the attorney general, joined a group of Republican-led states in a lawsuit designed to overturn the pre-existing protection. In a legal brief, Justice argues the provision is unconstitutional.
The timing is troublesome. The decision comes as insurers make plans for next year’s policies and pricing on the insurance exchanges, where individuals can purchase coverage, often subsidized and thus more affordable. The outcome is added uncertainty, inviting insurers to hedge in the form of higher premiums.
So is the reasoning problematic, Justice and the states rejecting the obvious.
They contend that because Congress repealed the individual mandate penalty in the tax bill approved last year, the rest of the Affordable Care Act no longer holds. They get to that conclusion by noting that the Supreme Court upheld the mandate because it stemmed from the taxing power of Congress. Now with that tax, or penalty, gone, they say the entire basis of the law has collapsed.
This thinking is far-fetched. If Congress really wanted to end the protection for pre-existing conditions, it would have done so. In this instance, lawmakers repealed the mandate, but they said nothing about ending the other provisions. They left them in place.
At work is the concept of “severability,” whether the loss of one element upends the whole. That is not the result Congress intended.
Justice is making a striking departure. The attorney general acknowledged it is rare for the department to balk at defending federal law. So is three career attorneys at Justice withdrawing from a case, as they did last week in this matter. Sessions claimed he couldn’t find “reasonable arguments” in support. That not only is disingenuous in view of congressional intent. It smacks of putting a policy clash ahead of seeing the laws are faithfully executed.