Capitolworks: Just the Facts...How Do Politics Effect DOJ's Defense of the ACA?

Over the last few weeks, you have undoubtedly heard about a lawsuit in Texas, Mr. Trump's positions on health care policy and the Affordable Care Act (ACA). Believe it or not, all three of these things are intricately linked to each other, and it was probably only a matter of time before that connection made the news. The lawsuit in question was filed in the state of Texas last year. In short, Texas alleges that the ACA is an overreach of Congress’ authority, undermining the State’s rights and is therefore unconstitutional. Since Congress passed and President Obama signed the ACA into law in 2010, many attempts have been made to eliminate this controversial legislation through various mechanisms including legislation, regulations, the courts and at the State government level (for those provisions over which the State has discretion). Some have worked, in part, while most have failed. So why now, at this moment in time, has this court case suddenly become the object of attention when previously, it was only health care policy wonks who were truly following the cases’ progress? Let’s take a look.

First of all, let’s try to understand Texas v. The US. The State of Texas filed Texas v. The US in an attempt to repeal ALL of Obamacare suing under the premise that the federal mandates included in the law- both for individuals as well as the states-- were unconstitutional and a breach of federal jurisdiction. In December of 2018, Northern District of Texas Court Judge Reed O’Connor ruled in favor of Texas which if upheld, would eliminate the ACA. But, given that this was only a state court and therefore not binding to the country at large, why did this lawsuit suddenly become a front-page news issue months after the ruling was handed down? The primary answer to that question lies in a very interesting illustration of our Nation’s system of checks and balances.

When the US is sued, it is the Department of Justice that defends our Nation in the courts of law. However, and this is where it gets interesting, DOJ is an agency that reports directly to the President. As we’ve discussed in other blogs, the agencies (DOJ, Health and Human Services, Department of Education, etc.) are all part of the Administration—not Congress-- and thus must serve at the pleasure of the President. So essentially, the DOJ must defend the US in accordance with the President's views and perhaps even directives. In the case of Texas v The US, we then need to know what this Administration's opinions are regarding the ACA to begin to predict how the DOJ will build their case.

Just last week, the DOJ, with the President’s support, reversed their opinion on several provisions within the ACA that up until now, they collectively supported and promised to protect from elimination. For example, the President had previously stated that he would not support the elimination of coverage for people with pre-existing conditions signaling that although not a supporter of the full law, he believed that the ACA had some provisions worth maintaining. However, last week, DOJ and President reversed their collective opinion on this stance and stated that they would support full repeal. Meaning, if Texas wins the case and DOJ loses, the entire ACA would be repealed. This new twist also calls into question the vigor with which the DOJ will defend the US if winning means maintaining the ACA. Enter our federal government's system of checks and balances.

Moving forward, the decision by the Texas court will be appealed to the next higher court. No matter who wins that fight, the other side will appeal to the next higher court until the last move is to request consideration by the Supreme Court. Since the ACA was passed, many speculated it was the courts that would have the final say in whether or not the law was constitutional. After all, Congress worked within its power to pass the legislation. The two different Administrations, since the passage of the ACA in 2010, have worked through their powers of the regulatory process to either clarify, strengthen or weaken the legislation. So, it makes sense that the final say would be with the courts as our last source of checks and balances in this equation.

As evidence that the branches of the federal government continue to challenge their jurisdictional boundaries, the Democrats in the House have since proposed a new bill to protect consumer needs called the Protecting Pre-Existing Health Conditions and Making Health Care More Affordable Act of 2019 to combat the efforts of the Trump-GOP. Until now, little has been said by the Trump-GOP about what (if anything) would replace the ACA should it be repealed at a federal level. In a series of tweets, Trump published that he was working towards a new health care plan that will be more affordable and accessible than any health care legislation that has been passed before. He cites, however, the need for a Republican-controlled Congress before such changes could be made. And so the circle continues.

*Contributing Author: Stephanie Ibanez