Affordable Care Act supporters highlight pre-existing conditions at a demonstration in New York last year. Photo: Erik McGregor/Pacific Press/LightRocket via Getty Images

The Trump administration's latest effort to eliminate the Affordable Care Act's protections for pre-existing conditions is opening a rift among Republicans, and even within the executive branch.

Between the lines: Congressional Republicans seem to just now be waking up to the fact that the Trump administration has boxed them into a new round of questions about whether the party wants to guarantee coverage for pre-existing conditions.

Not messing around: "The Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard. Congress specifically repealed the individual mandate penalty, but I didn’t hear a single senator say that they also thought they were repealing protections for people with pre-existing conditions," Sen. Lamar Alexander said in a statement.

Azar punts: HHS Secretary Alex Azar tried to duck the issue yesterday as he testified before the Senate HELP Committee, which Alexander chairs.

  • "The position articulated by the attorney general is a constitutional and legal position, not a policy position, but we share the view of working to ensure that individuals with pre-existing conditions can have access to afford health insurance," Azar said.

Reality check: The Justice Department did have to take a "constitutional and legal position" on the legality of the ACA's individual mandate. But its position on pre-existing conditions is very much a policy position, and was entirely discretionary.

  • The issue here is about "severability" — how much of the rest of the ACA would have to fall if the mandate is unconstitutional. That is not a legal question; it's a question about how the ACA works. It's a policy question.
  • Just ask Jonathan Adler, a conservative lawyer who helped spearhead the last big legal challenge to the ACA and has an excoriating piece in Reason about the "cynical (and doctrinally unfounded) manipulation of severability doctrine," calling it "an argument unworthy of the Department, and one I am confident the courts will ultimately reject."

DOJ lawyer quits: Three DOJ lawyers removed themselves from this case after the department came out against the mandate. But one of them, Joel McElvain, who had worked at the department for 20 years, went further: He quit DOJ altogether after stepping down from this case, The Washington Post reports.

Be smart: This is just the beginning.

Get more stories like this by signing up for our daily health care newsletter, Vitals. 

Go deeper

Trump says he wants 9 justices in case Supreme Court must decide 2020 election

President Trump told reporters at the White House on Wednesday that part of his urgency to quickly push through a replacement for the late Justice Ruth Bader Ginsburg is that he believes the Supreme Court may have to decide the result of the 2020 election.

Why it matters: Trump claimed at the Republican National Convention that the only way he will lose the election is if it is "rigged," and he has declined to say whether he would accept the results of November's election if he loses to Joe Biden.

"Not enough": Protesters react to no murder charges in Breonna Taylor case

A grand jury has indicted Brett Hankison, one of the Louisville police officers who entered Breonna Taylor's home in March, on three counts of wanton endangerment for firing shots blindly into neighboring apartments.

The state of play: Angering protesters, the grand jury did not indict any of the three officers involved in the botched drug raid on homicide or manslaughter charges related to the death of Taylor.

Judge orders Eric Trump to testify in New York probe before election

Photo: Ira L. Black/Corbis via Getty Images

A judge on Wednesday ordered Eric Trump to comply with a subpoena to testify before the presidential election in a New York probe into the Trump family business.

The state of play: New York Attorney General Letitia James (D) last month said her office had filed a lawsuit to compel the Trump Organization to comply with subpoenas related to an investigation into whether President Trump and his company improperly inflated the value of its assets on financial statements.

Get Axios AM in your inbox

Catch up on coronavirus stories and special reports, curated by Mike Allen everyday

Please enter a valid email.

Subscription failed
Thank you for subscribing!