Department of Justice Argues Against ACA Essential Health Benefits

June 08, 2018 - The Department of Justice (DoJ) has argued against the Affordable Care Act’s essential health benefits (EHBs) and the law’s individual mandate by supporting a lawsuit that argues the constitutionality of both laws, Attorney General Jeff Sessions said in a letter to Congress.

The lawsuit Texas vs. United States, No. 4: l 8-cv-00167-O was filed by 20 states and well as Maine Governor Paul LePage (R-ME) and Mississippi Governor Phil Bryant (R-MI). The group contends that the individual mandate is unconstitutional and unenforceable since the tax penalty is $0 by 2019. Sessions referenced statements from Chief Justice John Roberts saying that the individual mandate "reads more naturally as a command to buy insurance than as a tax," which violates current law since it doesn't provide government revenues.

Sessions and the DoJ not only agreed with the filing and argued against a federal law, but also extended counterpoints that contend the consitutionality of essential health benefits.

“As you know, the Executive Branch has a longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense,” Sessions stated.

“But not every professionally responsible argument is necessarily reasonable in this context, as ‘different cases can raise very different issues with respect to statutes of doubtful constitutional validity,’ and thus there are ‘a variety of factors that bear on whether the Department will defend the constitutionality of a statute,” Sessions continued. “[Referencing a previous 1996 letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois] Weighing those considerations here, I have concluded that this is a rare case where the proper course is to forgo defense of Section 5000A(a).”

The AG concluded his statement by referencing other legal contentions against the ACA and determined that it is unconstitutional to enforce essential health benefit protections because this provision of the ACA is inserverable from the indiviudal mandate. Sessions aruged that a mandate repeal, or a mandate without a tax, causes the essential benefits protections of ACA to become invalid.

“This question of statutory interpretation does not involve the ACA's constitutionality and therefore does not implicate the Department's general practice of defending the constitutionality of federal law,” Sessions said. “Outside of these two provisions of the ACA, the Department will continue to argue that Section 5000A(a) is severable from the remaining provisions of the ACA.”

DoJ’s response to this lawsuit adds to the number of federal decisions to weaken or limit the power of the Affordable Care Act. A repeal of the individual mandate, elimination of the cost-sharing reductions (CSRs), and expansion of the association health plan market are likely to create financial implications for payers offering individual health plans.

The lawsuit and the 20 states contending the ACA’s constitutionality are likely to face legal challenges from staunch defenders of the law.

California’s Attorney General Xavier Becerra, is leading a group of 16 states and their respective AGs to protect the ACA from state and federal-level opposition.

“The lawsuit initiated by Texas is dangerous and reckless and would destroy the ACA as we know it. It would leave millions of Americans without access to affordable, quality healthcare. It is irresponsible and puts politics ahead of working families,” Becerra said.

“We won’t sit back as Texas and others try yet again to dismantle our healthcare system. Our coalition of states and partners across the country will fight any effort to strip families of their health insurance."

Update: The article clarified the legal arguments presented by the Department of Justice.