(Note: The writers are answering the question: “Was the Justice Department correct when it called key components of Obamacare unconstitutional?”)
WASHINGTON — The Department of Justice’s decision to break with its duty to defend United States law and join in an ideological effort to continue dismantling the Affordable Care Act is simply wrong.
The legal argument calling the ACA unconstitutional is weak, the politics are tone-deaf and the results would take us back to the days when insurance companies decided who lives and who dies based on profit models rather than health care outcomes. As America’s pastime heats up, this move is a strikeout.
Texas v. United States is an ongoing legal challenge to the ACA’s individual mandate, which requires those without health coverage to get covered or pay a penalty.
The penalties end this year, however. The legal action has also asked for an injunction or hold on the entire ACA or at a minimum the individual mandate and the wildly popular guaranteed coverage for those with preexisting health conditions.
Now, the Justice Department has made the extraordinary decision to shirk its duty to defend existing law by refusing to back the ACA and even issuing a response arguing that since amendments to the act eliminated the penalties under the mandate, the law is now unconstitutional.
This action is extraordinary for several reasons. Foremost, it is the duty of the Department of Justice to defend existing law, not pick and choose its duty based on the ideology of the sitting administration. Justice Departments have rarely strayed from this duty throughout the years. Strike one, a foul ball off their own foot.
The Trump administration doesn’t lead with law or reality though, it leads with politics.
The politics of the DOJ’s action or perhaps inaction on this ACA challenge are meant as a political message to its dwindling base of supporters who are still opposed to Obamacare even as they support many of its parts such as federal subsidies for private coverage, the expansion of Medicaid and coverage for pre-existing conditions.
The direct attack on the elimination of pre-existing conditions protections that are a part of this legal challenge is a political head scratcher though.
One of the greatest, of admittedly many, injustices of the profit model for the health insurance has been the widespread policy of rejected coverage for, well, sick people.
This move, if fully understood, would even rile up the otherwise dedicated base and will be used by political opponents in the upcoming elections. Strike two, if you are keeping score, catches the Trump administration looking, not swinging.
The impact this would have on the health system, however, is the most devastating part of the DOJ’s move.
The plaintiffs are not just arguing against the individual mandate but are seeking to have the entire Affordable Care Act declared unconstitutional.
If this challenge, while highly unlikely, were to succeed, the admittedly popular and effective steps forward from the Affordable Care Act would be stripped away.
Millions would again be without health care through denials or be priced out of coverage. This is unacceptable. We should be moving forward on health care toward universal coverage not going backward to less coverage and care.
Strike three on the Trump administration folks — a huge swing and miss.
The Department of Justice is getting a big run of attention these days. A small sample would include the DOJ’s gut-wrenching decision that is separating migrant children from their parents, which is getting wide and bipartisan rebukes.
On the other hand, Trump himself and his congressional allies are waging an all-out public relations war on the Department of Justice in an attempt to protect Trump from legal challenges surfacing from investigations into Russia’s meddling in the last presidential election.
If these efforts succeed, we will have gotten more injustice than justice from this Department of Justice. We get to be the umpire this time though so, Mr. President and your cronies, you’re out!
Don Kusler is national director of Americans for Democratic Action (ADA), the nation’s most experienced progressive advocacy organization. Readers may write him at ADA, 1629 K Street NW, Suite 300, Washington, DC 20006.