Donald Trump Takes Aim at Pre-Existing Conditions

Jim West via ZUMA

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The Trump administration’s desperate desire to deprive Americans of health care entered a new phase tonight when Donald Trump personally approved a decision by the Justice Department not to defend Obamacare against state lawsuits:

In a brief filed in a Texas federal court and an accompanying letter to the House and Senate leaders of both parties, the Justice Department agrees in large part with the 20 Republican-led states who brought the suit. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law will not be valid either.

….The administration does not go as far as the Texas attorney general and his counterparts. In their suit, lodged in February in the U.S. District Court for the Northern District of Texas, they argue that the entire law is now invalid. By contrast, the Justice brief and letter say many other aspects of the law can survive because they can be considered legally distinct from the insurance mandate and such consumer protections as a ban on charging more or refusing coverage to people with preexisting medical conditions.

….In an unusual filing just before 6 p.m. Thursday, when the brief was due, the three career Justice attorneys involved in the case — Joel McElvain, Eric Beckenhauer and Rebecca Kopplin — withdrew.

A few points:

  • It is very unusual—in fact, virtually unprecedented—for the Justice Department not to defend a law.
  • DOJ is joining an unusually frivolous effort. The states claim that with the mandate tax now repealed, the mandate itself has also been repealed. And if there’s no mandate, then forcing insurers to cover pre-existing conditions is no longer valid either. This makes no sense.
  • Senseless or not, both Trump and other Republicans have stated repeatedly that they’re all in favor of prohibiting insurers from discriminating against patients with pre-existing conditions. Now they’re explicitly trying to allow it.

And check out this tweet from the middle of an Andy Slavitt tweetstorm:

Of course they don’t want it to go into effect before the election. That would generate lots of newspaper headlines and make people mad. Instead, they want to pretend that they have a shiny new ban on pre-existing conditions all ready to go, so there’s nothing to worry about. A few days after the election, if they get the ruling they want and remain in control of Congress, they will conveniently be unable to pass anything through either house.

Of course, probably none of this matters. Any decision would almost certainly be stayed and appealed immediately, and eventually make its way to the Supreme Court. It’s unlikely the present court would waste time on a subject they’ve already spent so much time on, but you never know when a justice will retire or die, opening up a slot for a conservative willing to vote for anything as long as it cripples Obamacare. In a normal world, nobody would have to worry about petty nonsense like these lawsuits. But we don’t live in a normal world anymore.

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