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Photo: Jim Watson/AFP/Getty Images

Health and Human Services Secretary Alex Azar said earlier this week that the Justice Department’s approach to the Affordable Care Act’s protections for pre-existing conditions is not as big a deal as it's being made out to be, because it’s the same position the Obama administration took in 2012.

Reality check: It’s true that the two positions are the same, but they’re being made under very different circumstances.

Flashback: When the Supreme Court heard its landmark ACA case in 2012, the Obama administration said the law’s individual mandate was constitutional. The Trump administration says it’s not. That’s one pretty big distinction between the two arguments.

  • The Obama administration did say that if the court struck down the mandate, it should also strike down provisions requiring insurers to cover pre-existing conditions and prohibiting them from charging people with those conditions a higher premium. It said the rest of the law should stand.

The big difference: Congress. When courts delve into “severability” questions, they’re trying to figure out how a statute is supposed to function.

  • In 2012, the courts were considering a law with an individual mandate and coverage guarantees for pre-existing conditions. They were trying to figure out whether Congress would have included one without the other.
  • But critics of the Trump administration will argue that Congress has now answered that question. It repealed the individual mandate; it didn’t repeal guaranteed coverage for pre-existing conditions.
  • The Democratic attorneys general defending the ACA in this case will argue that Congress severed the two provisions, so Congress clearly saw them as severable.

The bottom line: Severability is about congressional intent, and Congress said two different things in these two cases.

Go deeper

Schumer's m(aj)ority checklist

Senate Minority Leader Chuck Schumer. Photo: Tasos Katopodis/Getty Images

Capitalizing on the Georgia runoffs, achieving a 50-50 Senate and launching an impeachment trial are weighty to-dos for getting Joe Biden's administration up and running on Day One.

What to watch: A blend of ceremonies, hearings and legal timelines will come into play on Tuesday and Wednesday so Chuck Schumer can actually claim the Senate majority and propel the new president's agenda.

The dark new reality in Congress

National Guard troops keep watch at security fencing. Photo: Kent Nishimura/Los Angeles Times via Getty Images

This is how bad things are for elected officials and others working in a post-insurrection Congress:

  • Rep. Norma Torres (D-Calif.) said she had a panic attack while grocery shopping back home.
  • Rep. Jim McGovern (D-Mass.) said police may also have to be at his constituent meetings.
  • Rep. Adam Kinzinger (R-Ill.) told a podcaster he brought a gun to his office on Capitol Hill on Jan. 6 because he anticipated trouble with the proceedings that day.
Off the Rails

Episode 3: Descent into madness ... Trump: "Sometimes you need a little crazy"

Photo illustration: Sarah Grillo/Axios. Photos: Tom Williams/CQ-Roll Call, Chip Somodevilla/Getty Images

Beginning on election night 2020 and continuing through his final days in office, Donald Trump unraveled and dragged America with him, to the point that his followers sacked the U.S. Capitol with two weeks left in his term. This Axios series takes you inside the collapse of a president.

Episode 3: The conspiracy goes too far. Trump's outside lawyers plot to seize voting machines and spin theories about communists, spies and computer software.

President Trump was sitting in the Oval Office one day in late November when a call came in from lawyer Sidney Powell. "Ugh, Sidney," he told the staff in the room before he picked up. "She's getting a little crazy, isn't she? She's really gotta tone it down. No one believes this stuff. It's just too much."

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