GOP AG’s in court today trying to take health care away from millions of Americans


Evil GOP bastards never stop trying to take health care away from millions of Americans. Today, 20 state attorneys general from red states are in a Texas court that they forum shopped to find a conservative activist judge who may rule in their favor, arguing on specious grounds that the GOP’s tax scam bill this year –  which eliminated the individual mandate – now invalidates the entirety of the Affordable Act aka “Obamacare” (something Rep. Martha McSally (above) and the GOP Congress failed to do by legislation thanks to the late Sen. John McCain).

If these evil GOP bastards were to eventually succeed on this specious argument all the way to the Supreme Court, millions of Americans would lose their health insurance, in particular those with preexisting health conditions who would no longer be protected.

The Los Angeles Times reports, Obamacare returns to court in a new test for the 2010 law and millions who rely on it:

The long national legal war over the Affordable Care Act will resume in a Texas courtroom Wednesday as a federal judge hears arguments in a new lawsuit seeking to wipe out the 2010 law, often called Obamacare.

If successful, the suit — brought by 20 Republican governors and state attorneys general — could upend health coverage for tens of millions of Americans who have come to depend on the law.

At the same time, the case is emerging as a major flash point ahead of the fall midterm elections as Democrats highlight Republican efforts to roll back the law and its protections for people with preexisting medical conditions.

The Trump administration has inserted itself in the fight, backing part of the Republican suit and arguing that provisions in the healthcare law that prohibit insurers from turning away sick customers or charging them more for coverage [i.e., preexisting conditions] should be scrapped.

The Trump administration nevertheless decided in June not to defend the healthcare law in court, an unusual departure from the Justice Department’s traditional responsibility to safeguard federal law.

That has fueled a renewed effort by Democrats to highlight Republican hostility to healthcare protections in the 2010 law.

This case is going to help renew the focus on healthcare in the midterm elections,” said Celinda Lake, a longtime Democratic pollster, who noted that the issue had been flagging slightly as Trump and other Republicans have talked less about rolling back the healthcare law since they failed to repeal it in Congress last year.

The foundation of the lawsuit is a provision in last year’s mammoth tax bill that eliminated the tax penalty on Americans who don’t have health insurance, but still preserved the technical requirement that people have coverage.

The requirement and the penalty were once considered integral parts of the healthcare law. Insurers, state regulators and other experts believed that unless there was a penalty for going uninsured, younger and healthier people would not buy health plans until they got sick, leading insurance markets to collapse.

The requirement and the penalty were once considered integral parts of the healthcare law. Insurers, state regulators and other experts believed that unless there was a penalty for going uninsured, younger and healthier people would not buy health plans until they got sick, leading insurance markets to collapse.

The penalty was also critical to the healthcare law’s survival when it first came before the Supreme Court in 2012 in a lawsuit that alleged the law’s insurance requirement was unconstitutional.

Chief Justice John G. Roberts Jr. joined the court’s four liberal justices to uphold the law, but only after concluding that the requirement could stand because it was enforced with a tax penalty.

Now in the Texas case, the 20 governors and attorneys general argue the requirement is no longer constitutional because the tax penalty has been eliminated.

And, they continue, because the requirement is so central to healthcare law, the whole law cannot survive without it.

“Absent the individual mandate, the ACA is an irrational regulatory regime,” the plaintiffs argue in court papers.

That would mean the end of popular insurance protections, including bans on insurance companies turning away sick customers or charging them higher premiums, practices that were commonplace before the healthcare law was enacted.

These protections are among the most popular parts of the healthcare law. Two-thirds of voters in one recent nationwide poll said that a political candidate’s support for maintaining these protections would be a very important or the single most important factor in evaluating the candidate ahead of the election this fall.

The Texas suit would also eliminate hundreds of billions of dollars in federal assistance that has made it possible to extend coverage to some 20 million previously uninsured Americans through expansions to state Medicaid programs and through subsidies available to low- and middle-income Americans who buy coverage on insurance marketplaces around the country.

Scores of patient advocates, physicians and hospital groups and other healthcare experts have warned that such a retrenchment would be catastrophic.“

Invalidating the guaranteed-issue and community rating provisions — or the entire ACA — would have a devastating impact on doctors, patients and the American healthcare system as a whole,” noted a coalition of physician groups that included the American Medical Assn., the American Academy of Family Physicians, the American College of Physicians and the American Academy of Pediatrics.

Also opposing the lawsuit are leading national groups representing patients, including the American Diabetes Assn., the American Lung Assn., the American Heart Assn., the National Multiple Sclerosis Society and the advocacy arm of the American Cancer Society.

* * *

Across the country this summer, Democratic congressional candidates have made preserving the healthcare law’s protections a cornerstone of their campaigns.

Last week, Vice President Mike Pence appeared to give Democrats more ammunition, telling reporters that if Republicans do well in the fall midterms, the party would make another attempt to repeal the ACA next year [it could come during a lame-duck session of Congress later this year after the election if the GOP retains its control of the House and Senate.]

Sensitive to the escalating criticism, a group of Republican senators led by North Carolina Sen. Thom Tillis introduced a bill recently that they claimed would protect Americans’ insurance coverage, even if the federal court in Texas backs the challenge.

“This legislation is a common-sense solution that guarantees Americans with preexisting conditions will have healthcare coverage,” Tillis said.

But, importantly, the bill would not bar insurers from denying coverage for individual medical conditions, meaning a cancer patient might be able to buy a health plan, but not one that covered treatment for cancer.

Acknowledging the hole in the proposal, Tillis spokesman Dan Keylin said the bill has only limited aims. “This is not intended to be a comprehensive replacement for Obamacare,” he said.

Many legal experts have said the Texas case appears to be a longshot.

See Nicholas Bagley, a professor at the University of Michigan Law School and a contributor to the Incidental Economist, Trump’s legal attack on the ACA isn’t about health care. It’s a war on the rule of law.

As the states see it, the freestanding requirement to get insurance, which is still on the books, is therefore unconstitutional. The states are probably wrong about that, but never mind. It’s their next move that’s the really audacious one. They argue that because the penalty-free mandate is unconstitutional, the courts must invalidate the entire ACA — lock, stock, and barrel.

Why? Because in the states’ view, Congress believed that the individual mandate was essential to the proper functioning of the rest of the ACA. If it goes, Congress must have wanted the rest of the statute ditched too.

If that sounds inane, that’s because it is. When Congress adopted the individual mandate in 2010, it was an essential part of a broader scheme. But Congress is always free to amend its statutes, even to omit what it previously thought was essential. That’s what Congress did when it wiped out the penalty for going without insurance coverage.

That may have been imprudent: The goal of the individual mandate is to get healthy people to buy insurance, which spreads risk across a broader population and helps keep prices lower for all of us. Without the mandate, insurance premiums are projected to spike.

But Congress is free to make imprudent choices. And here, we don’t have to speculate what Congress would’ve done if it had to choose between invalidating the ACA and eliminating the mandate. Congress made the decision itself: The mandate can go and the rest can stand. For a court to now reject that choice would be the worst kind of judicial activism.

What’s more, the Justice Department had a duty to make that argument. There’s a longstanding, bipartisan commitment to defending acts of Congress whenever a non-frivolous argument can be made in their defense.

But don’t take my word for it. For Justice Department lawyers — and I was one myself (from 2007 to 2010) — the duty to defend congressional statutes is at the core of what it means to be a government attorney. Yet hours before the federal government filed its brief, three line attorneys from the Justice Department withdrew from the case. That’s almost unheard of. These are lawyers who have made arguments they personally disagreed with countless times. They’re civil servants; they’re good soldiers. Yet they could not sign on to the administration’s argument. That’s how outlandish it is.

“The president has a duty to take care that all the laws are faithfully executed, not just the ones he likes.”

And in recent weeks, Brett M. Kavanaugh, Trump’s pick to the fill the current vacancy on the Supreme Court, has signaled some skepticism about the challenge, according to congressional officials who have met with him.

In testimony at his confirmation hearing today, Kavanaugh declined to answer questions about the Texas case on the grounds that he will not comment on pending litigation.

But the federal courts in Texas are considered among the most conservative in the country, and Judge Reed O’Connor, who is hearing the case, has already ruled once against the healthcare law, blocking enforcement of a regulation issued by the Obama administration to protect transgender people from discrimination in healthcare.

Writing off this case would be a mistake, warned Josh Blackman, a professor at South Texas College of Law and frequent commentator on the healthcare law.

“If the history of the Affordable Care Act teaches us anything, it is that we should not dismiss legal challenges too quickly,” he said.

If you want to keep your health insurance, especially those of you with preexisting conditions who are protected under “Obamacare,” you must vote for Democrats in November. Republicans are hellbent on taking away your health insurance coverage from you. Don’t give them the chance.

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