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The Trump administration has laid out its full argument for why a federal appeals court should invalidate the entire Affordable Care Act — and it's a doozy.
The big picture: It comes down to "severability," and severability comes down to congressional intent. The thinking goes: if the ACA's individual mandate is unconstitutional — which is not a given — can other parts of the law function the way Congress intended?
The challenge for the Justice Department is squaring the intentions Congress expressed in 2010, when it first passed the ACA, with the intentions Congress expressed in 2017, when it nullified the individual mandate but left the rest of the law intact.
- When Congress passed the ACA, it included findings that said the individual mandate was key to making the law's protections for people with pre-existing conditions work. As DOJ notes in its new brief, Congress has not repealed those findings.
- But Congress has designed a new statute — one that keeps the protections for pre-existing conditions and doesn't have a penalty for being uninsured.
- DOJ is arguing here that Congress' decision to enacted that set of policies is not evidence of Congress' intent — that its words from 2010 effectively override its actions in 2017.
Even that logic only takes you as far as striking down the mandate and protections for pre-existing conditions — the provisions Congress said were tied together. But that’s not the case DOJ is making. It says the whole ACA should go.
- It's sort of a cascading theory — that once the provisions on pre-existing conditions fall, the rest of the law's insurance reforms can't work as intended, so they should fall, and once they fall, the taxes that help pay for them aren't working as intended, which means the Medicaid expansion now would be increasing the deficit, which means it should fall.
The ACA is much more than its insurance reforms. And the DOJ's latest brief acknowledges that "there are other provisions that might be able to operate in the manner that Congress intended" even if those reforms are struck down.
- But the courts should strike those provisions down anyway, DOJ argues, because they're still part of the ACA — or, in DOJ's words, "the question of congressional intent as to those provisions is complicated by the circumstances surrounding their enactment."