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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 Congress specifically repealed the individual mandate penalty, but I didn’t hear a single senator say that they also thought they were repealing protections for people with pre-existing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

Cuomo asks New York AG and chief judge to choose "independent" investigator into sexual harassment claims

New York Governor Andrew Cuomo at a press conference on Feb. 24. Photo: Seth Wenig/pool/AFP via Getty Images

A special counselor to New York Gov. Andrew Cuomo released a statement on Sunday asking the state's attorney general and chief judge to jointly pick an "independent and qualified lawyer in private practice without political affiliation" to investigate claims of sexual harassment against the governor.

The state of play: The statement is an about-face from Cuomo, who had previously selected a former judge close to a top aide to lead the investigation, the New York Times reported, a move that was widely criticized.

Republican Sen. Sasse slams Nebraska GOP for "weird worship" of Trump after state party rebuke

Sen. Ben Sasse, (R-Neb.) Photo: Andrew Harnik - Pool/Getty Images

The Nebraska Republican Party on Saturday formally "rebuked" Sen. Ben Sasse (R-Neb.) for his vote to impeach former President Trump earlier this year, though it stopped short of a formal censure, CNN reports.

Why it matters: Sasse is the latest among a slate of Republicans who have faced some sort of punishment from their state party apparatus after voting to impeach the former president. The senator responded statement Saturday, per the Omaha World-Herald, saying "most Nebraskans don't think politics should be about the weird worship of one dude."

Cuomo barraged by fellow Dems after second harassment accusation

New York Gov. Andrew Cuomo faced a barrage of criticism from fellow Democrats after The New York Times reported that the second former aide in four days had accused him of sexual harassment.

Why it matters: Cuomo had faced a revolt from legislators for his handling of nursing-home deaths from COVID. Now, the scandal is acutely personal, with obviously grave political risk.