The Trump administration told a federal court Thursday evening that it would no longer defend the Affordable Care Act (ACA), arguing that protections for people with pre-existing conditions are unconstitutional.

The Justice Department filed the brief supporting a lawsuit from Texas and 19 other Republican-led states. In their complaint, the states argue the courts must invalidate the entire ACA because Congress zeroed out the individual mandate, the penalty for not having insurance.

The norm is for the federal government to defend federal law, but the Trump administration, instead, agreed with the 20 conservative states. The Justice Department lawyers stopped short of arguing that the entire law, including Medicaid expansion, should be struck down, but did say that the provisions protecting people with pre-existing conditions should now be ruled unconstitutional.

It’s not unprecedented for the Justice Department to decide against defending federal law in court; the Obama administration didn’t defend the Defense of Marriage Act of 1996, which prohibited married same-sex couples from receiving federal benefits. But, the Justice Department concluded, as the University of Michigan’s Nicholas Bagley points out, that it was no longer constitutionally defensible to deny equal rights to LGBTQ people. That said, it’s rare, and law and health experts alike are jolted by the news.


“Although the ACA is not in immediate peril, the brief represents an enormous blow to the integrity of the Justice Department,” writes Bagley, an ACA law expert. “It also displays enormous contempt for the rule of law.”

The brief “was so radical, and so self-evidently without merit, that career lawyers in that agency would not sign their names to it. In fact, the document is such a transparent embarrassment that three career lawyers involved in the case withdrew their appearance before it was filed, presumably to avoid the taint of being listed on a docket where it appeared,” wrote Ian Samuel and Leah Litman, of Harvard Law School and University of California at Irvine, School of Law, respectively.

President Donald Trump has repeatedly promised to protect people with pre-existing conditions, but Thursday’s move proves that was an empty promise. When Congressional Republicans were working to repeal and replace the ACA, he said his health plan would take “care of pre-existing conditions.” But now his administration is unwilling to defend such people in court. Instead, California and 15 other states intervened in the lawsuit, filing a brief Thursday to defend the ACA.

It’s unlikely, but should conservative states win, roughly 130 million people with pre-existing conditions are at risk of being denied insurance or charged more for care.

⚠️ THREAD: According to the HHS Dept., appx. 130 MILLION non-elderly Americans have pre-existing conditions which would likely get them either denied coverage or charged so much for coverage they’d be effectively priced out of the market. 1/ — Charles Gaba (@charles_gaba) June 8, 2018

The news also comes at a critical time for the ACA marketplace. Insurance companies are currently setting ACA premium rates for 2019, and also are deciding whether to continue selling plans on the marketplace. In May 2017, there were several counties where no insurers offered ACA health plans. By September, all were filled.


Kaiser Family Foundation’s Larry Levitt doesn’t expect insurers to drop the market because the legal case won’t be decided soon. But on Twitter, he added “when insurance companies face uncertainty, they increase premiums.”

Credit: Kaiser Family Foundation

Already, insurers posted preliminary premium estimates in eight states and Washington D.C., and many raised rates, citing repeal of the individual mandate. Of course, state officials have to approve rates before anything is official. And many are protected by subsidies.