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Photo: Chip Somodevilla/Getty Images

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 As DOJ notes in its new brief, Congress has not repealed those findings.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."

Go deeper: How the ACA went from unpopular to (sort of) popular

Go deeper

Miriam Kramer, author of Space
42 mins ago - Science

Biden's military space future

Illustration: Eniola Odetunde/Axios

President-elect Joe Biden should anticipate major and minor conflicts in space from even the earliest days of his presidency.

The big picture: President Donald Trump's military and civil space policies are well-documented, but Biden's record and views on space are less clear.

Updated 2 hours ago - Politics & Policy

Coronavirus dashboard

Illustration: Sarah Grillo/Axios

  1. Health: Coronavirus may have been in U.S. in December 2019, study finds — Hospital crisis deepens as holiday season nears.
  2. Politics: Bipartisan group of senators unveil $908 billion COVID stimulus proposalFDA chief was called to West Wing to explain why agency hasn't moved faster on vaccine — The words that actually persuade people on the pandemic
  3. Vaccine: Moderna to file for FDA emergency use authorizationVaccinating rural America won't be easy — Being last in the vaccine queue is young people's next big COVID test.
  4. States: Cuomo orders emergency hospital protocols as New York's COVID capacity dwindles.
  5. World: European regulators to assess first COVID-19 vaccine by Dec. 29
  6. 🎧 Podcast: The state of play of the top vaccines.

Bipartisan group of senators unveils $908 billion COVID stimulus proposal

Sens. Joe Manchin (D-W.Va.) and Susan Collins (R-Maine) in the Capitol in 2018. Photo: Tom Williams/CQ Roll Call

A bipartisan group of senators on Tuesday proposed a $908 billion coronavirus stimulus package, in one of the few concrete steps toward COVID relief made by Congress in several months.

Why it matters: Recent data shows that the economic recovery is floundering as coronavirus cases surge and hospitals threaten to be overwhelmed heading into what is likely to be a grim winter.