President Donald Trump's administration has taken numerous steps to dismantle the law. | Alex Wong/Getty Images Trump administration backs court case to overturn key Obamacare provisions Trump’s Justice Department is calling on the courts to throw out protections for people with pre-existing conditions.

The Trump administration is urging a federal court to dismantle two of the most popular provisions of Obamacare, but to delay taking such drastic action until after the midterm elections this fall.

Responding to a lawsuit from conservative states seeking to invalidate the Affordable Care Act, the Justice Department told a judge in Texas on Thursday that Congress’ decision to repeal the penalty for failing to buy health insurance renders unconstitutional other Obamacare language banning insurers from charging people more or denying them coverage based on a pre-existing condition.


The Texas-led lawsuit filed in February claims that the recent elimination of Obamacare’s individual mandate penalty means that the whole health care law should now be ruled invalid. The mandate penalty was wiped out effective in 2019 as part of the GOP tax law passed late last year, H.R. 1 (115).

The administration's evening filing says it agrees with states bringing the suit that the individual mandate is unconstitutional, as are two of the law’s major insurance provisions meant to protect people with expensive medical conditions. With the filing, the Trump administration is asking the courts to wipe out protections that many congressional Republicans were wary of eliminating in their failed efforts to repeal Obamacare.

Attorney General Jeff Sessions, in a letter to House Speaker Paul Ryan, acknowledged that the executive branch typically defends existing federal law, but he said this was a “rare care where the proper course” is to forgo defense of the individual mandate. He said the two insurance provisions, known as guaranteed issue and community rating, should be struck because they are too closely tied to the individual mandate. Without the mandate, Sessions wrote, “individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else.”

The administration's decision means that a group of 15 Democratic states led by California will be largely responsible for defending the Obamacare against its latest legal threat.

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California Attorney General Xavier Becerra called the lawsuit “dangerous and reckless” and argued that the Supreme Court already upheld the legality of the individual mandate in earlier decisions. He estimated that the states that are defending the health law could lose half a trillion dollars in health care funding if the lawsuit is successful.

"I am at a loss for words to explain how big of a deal this is," University of Michigan health law professor Nicholas Bagley, an authority on Obamacare, wrote on Twitter. "The Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense. This brief torches that commitment."

Still, the Justice Department said that other provisions of the law, such as the health insurance marketplaces and Medicaid expansion, should not be struck down with the mandate. The administration also said the court shouldn’t grant the states’ request to immediately halt the law while the court challenge is pending because the individual mandate penalty will remain in effect until January.

The Trump administration has taken numerous steps to dismantle the law — eliminating a key subsidy, paring back outreach and marketing funds, and promoting health plans that don’t meet the law’s robust requirements.

Repeal efforts have largely stalled on the Hill, and the health law remains on the books. Insurers have begun to file 2019 rate proposals, and Virginia‘s governor signed Medicaid expansion into law Thursday. Still, the Trump administration has been using executive power and regulations to further undermine the health law.

By adopting this legal position — refusing to defend key parts of the law — the administration is taking its fight against Obamacare even further, said Tom Miller, a resident health policy fellow at the American Enterprise Institute.

The federal government would usually defend a lawsuit brought against it by states. This filing reveals the Trump administration’s attempt to appease its base while defending other popular parts of the law. With this filing, Trump “can have his cake and eat it too by saying we got rid of individual mandate,” said Miller.

Conservative states hope the legal challenge will be the fifth involving Obamacare to reach the Supreme Court — although this lawsuit has been seen as a long shot.

Ironically, the states based their case in part on Chief Justice John Roberts’ 2012 decision that upheld the legality of the individual mandate as a tax and recognized the penalty as crucial to making Obamacare function. The states say that means the entire law should no longer stand without the tax penalty.

Conservative states hope they have improved their case’s prospects by finding individual plaintiffs who say they are still hurt by the mandate even though the penalty is gone and by filing the suit in a favorable venue.

The first arguments will be aired in Fort Worth later this year before District Judge Reed O’Connor, a George W. Bush appointee who in 2016 ruled against Obamacare regulations barring health care providers from discriminating against transgender patients and those seeking abortion-related care.

The Trump administration’s decision not to defend a law it administers has recent precedent. In 2011, the Obama administration said it wouldn’t the defend the Defense of Marriage Act, which banned federal recognition of same-sex marriage. Two years later, the Supreme Court struck down a key part of DOMA, and it recognized the right to same-sex marriage nationwide in 2015.

Josh Gerstein contributed to this report.

