The Justice Department said last night that the Affordable Care Act's individual mandate has become unconstitutional. Even more importantly, it says the law's most popular provision — guaranteed coverage for people with pre-existing conditions — also has to go.
Threat level: The legal challenge at issue here may be somewhat of a long shot on the merits. But if it does ultimately succeed, it could toss out the hardest-fought and most significant parts of the ACA.
Why it matters, norms edition: When people challenge a federal law in court, DOJ defends that federal law, almost every time.
- No, this is not the first time in history DOJ has done something like this. The Obama administration quit defending the federal ban on same-sex marriage. A thing does not need to be literally unprecedented to be a big deal, and this thing is a big deal.
Why it matters, health policy edition: We're used to having complex arguments about how this complex law would function without the individual mandate.
- But if insurers can simply deny sick people coverage again, then it's not a matter of how the health of the risk pool affects premiums. They can just be excluded from the market altogether — rolling back the ACA's most popular and foundational promise.
What's next: To be clear, DOJ has not won this argument. It has only made the argument. But its position carries weight in the courts, and this case will work its way up through conservative courts.
- It's being heard by a conservative judge, Reed O'Connor. His ruling will inevitably be appealed to the 5th Circuit Court of Appeals — the most conservative appeals court in the country. From there it would go to the Supreme Court.
- And there, it'd once again come down to two Republican-appointed justices: John Roberts and, if he's still on the court, Anthony Kennedy.
The politics: Democrats are already making the case that this plays right into their hands in the midterms. There's a logic to that — "Trump is trying to take away coverage for pre-existing conditions" is pretty a obvious hit.
- But even Democrats' best-case midterm scenarios have very little chance of affecting the outcome of this case. It's already in motion, and winning the House, or even the Senate, won't force the Trump administration to change this decision.