Sen. Ted Cruz (R-TX), as vociferous an Obamacare critic as you’ll find, sounds on board with the latest legal challenge to the health care law that could lead to protections for people with preexisting conditions being found unconstitutional.

Cruz told Vox that he thought the Justice Department’s position in the lawsuit, that the law’s rules on preexisting conditions should be invalidated along with the individual mandate, was “reasonable” and defended the foundation of the case being brought by his home state of Texas in a brief interview at the Capitol.

Texas is suing to overturn the law’s individual mandate and with it the rest of Obamacare, arguing it is now unconstitutional after Republicans repealed the mandate penalty in their tax bill. In short, the state’s argument is that because the Supreme Court upheld the individual mandate in 2012 as a tax, and the tax penalty has now been repealed, there is no longer a constitutional basis for preserving the mandate or the rest of the law.

The Trump administration has agreed in part, saying the mandate and the law’s popular protections for preexisting conditions should be nullified in a recently filed legal brief.

“Those parts that the court explicitly upheld under the taxing power, the Department of Justice conceded, under the court’s reasoning, no longer had a constitutional basis,” Cruz, who studied law at Harvard and served as Texas’s solicitor general before coming to Congress, told me. “I think that is a reasonable position for the Justice Department to take.”

“I think the consequence if the court agrees with the state of Texas’s lawsuit will be that consumers will have more choices, more competition, more options, more individual freedom and lower premiums,” he continued. “That’s a win for health care consumers across the country.”

The left-leaning Urban Institute just estimated that the number of uninsured Americans would jump to 51 million, a 50 percent increase, if the Texas case were successful and the entire law were found unconstitutional.

Legal experts, on the right and the left, have said that the Trump administration’s position in the case is “absurd” and “ludicrous” because if Congress had intended to invalidate the preexisting conditions rules along with the mandate penalty in the tax bill, they would have. A senior career Justice Department attorney also resigned following the administration’s decision not to defend the health care law, as the Washington Post reported.

I asked Cruz whether he thought Republican senators had believed they were also voting in the tax legislation to nix those regulations along with the financial penalty for not having health insurance.

“I don’t know if that was specific congressional intent or not. Member by member, I suspect that varies. That’s one of the reasons why the court has given relatively little weight to legislative history, because with 100 senators, you may well get 100 different intents,” he said. “But Texas’s argument, which has considerable force, is that is the legal consequence of having repealed the tax.”

Cruz has been, if nothing else, consistent in his feelings about the preexisting conditions rules, going back to the Obamacare repeal fight last summer. He notably put forward a proposal that would have allowed health insurers to offer non-Obamacare insurance plans once again, so long as they also sold plans that did comply with the law’s rules.

He is now facing a high-profile challenger in his Senate reelection campaign, Rep. Beto O’Rourke. The Texas Democrat has been sharply critical of the DOJ’s position in the case.

Half of Texans below the age of 65 have at least one pre-existing condition.

"This is a huge deal. First, if the administration’s position prevails, millions of Americans will lose the protections they thought they had against being denied coverage" https://t.co/Btu7UWJ48a — Beto O'Rourke (@BetoORourke) June 13, 2018

My interview with Cruz is below, lightly edited for clarity and length.

Dylan Scott

You might have seen the brief the DOJ filed arguing that community rating and guaranteed issue would be unconstitutional if the individual mandate were also found unconstitutional. Especially given your background, I’m wondering what you think of that argument.

Ted Cruz

The basis of the US Supreme Court ruling upholding Obamacare was that the court in a narrow 5-4 majority wrongfully transformed the individual mandate into a tax. The individual mandate was not a tax, Congress said repeatedly it was not a tax, and yet Chief Justice John Roberts’s opinion declared it to be a tax, and the basis for the constitutionality of much of the rest of Obamacare hinged on the assertion that it was a tax.

In December, as part of the tax cut legislation, Congress repealed the Obamacare individual mandate, repealed what was argued to be a tax before the Supreme Court. Texas’s lawsuit quite reasonably argued that if the basis for the constitutionality of other provisions of Obamacare was that the individual mandate is a tax, once that tax is repealed, the basis for constitutionality is eliminated.

The US Department of Justice agreed with that argument insofar as it concerns the Obamacare regulations that restrict what health insurance choices consumers can have. The Department of Justice defended other aspects of Obamacare that were not, in the Supreme Court’s reasoning, directly linked to the individual mandate and whether or not it was a tax.

But those parts that the court explicitly upheld under the taxing power, the Department of Justice conceded, under the court’s reasoning, no longer had a constitutional basis.

Dylan Scott

And you think that’s a sound argument?

Ted Cruz

I think that is a reasonable position for the Justice Department to take, and I think the consequence if the court agrees with the state of Texas’s lawsuit will be that consumers will have more choices, more competition, more options, more individual freedom, and lower premiums. That’s a win for health care consumers across the country.

Dylan Scott

I know the severability issue hinges in part on congressional intent. I’m curious, when you voted for the tax bill in December, did you think of that as also voting to invalidate the Title I regulations?

Ted Cruz

I don’t know if that was specific congressional intent or not. Member by member, I suspect that varies. That’s one of the reasons why the court has given relatively little weight to legislative history, because with 100 senators, you may well get 100 different intents.

But Texas’s argument, which has considerable force, is that is the legal consequence of having repealed the tax.

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