- The Washington Times - Friday, June 8, 2018

House Republicans said Friday they aren’t sweating the Trump administration’s refusal to defend Obamacare against a lawsuit that could nix popular health care protections, saying the case is in its infancy and they acquitted themselves by offering an alternative health plan last year.

Many lawmakers were playing catch-up with the fledgling case, though Rep. Michael Burgess, Texas Republican, said there could be a “silver lining” if the courts force Congress to revisit heath care under the threat of losing Obamacare’s protections for people with pre-existing conditions next year.

Though Republicans loathe the 2010 law, many of them have pushed for market-oriented solutions that allow sicker Americans to obtain insurance without facing sky-high prices.

“We did that before with our repeal-and-replace bill. We could not find partners in the Senate who were willing to look at anything,” Mr. Burgess said. “Maybe the silver lining to all of this is if that all comes to pass, then something will have to happen, and it will require us to work together. So there’s a nice positive for you.”

Lawmakers said they still are reading a Thursday court filing that is reviving the health care reform debate in a pivotal midterm year.

The Justice Department told a federal court in Texas that it wouldn’t defend the 2010 Affordable Care Act against a lawsuit that argues its “individual mandate” to hold insurance is no longer valid, since Congress zeroed out its penalties in the GOP tax bill.

The argument evokes Chief Justice John G. Roberts Jr.’s 2012 ruling upholding the constitutionality of the individual mandate as a valid use of Congress’s taxing power. The court held that Congress was able to offer people a choice: get insurance, or pay a tax.

If there is no tax penalty for not buying insurance now, then no taxation is taking place, so the other parts of the law tied to the individual mandate must go, the 20 GOP attorneys general argue.

The Justice Department concurred, saying the court should consider ordering that as of Jan. 1, two popular parts of the law will be invalid: that people with preexisting conditions must receive coverage, and that they cannot be charged more than healthier consumers.

The nation’s top insurers’ lobby said Friday the administration’s position is untenable and could destabilize the markets as insurers develop their offerings for next year.

“Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019,” said America’s Health Insurance Plans. “Instead, we should focus on advancing proven solutions that ensure affordability for all consumers.”

Though the lawsuit has a long path before it, Democrats and their allies are seizing on the administration’s stance as a ready-made attack line as they try to retake the House in November.

For years, Republicans said they would protect people who suffer from preexisting conditions and were priced out of the individual market.

“They’re in charge of everything, right? If they tear this apart, and they don’t have an alternative, I think we’re headed for a train wreck,” said Rep. James McGovern, Massachusetts Democrat. “I think what they’re doing is wrong, I think their attempts to overturn the Affordable Care Act have been wrong, but look, they’re the majority, they set the schedule.”

Senior House Democrats on health care committees called the administration’s refusal to defend the federal health law a “stunning attack on the rule of law.”

But Rep. Steve King, Iowa Republican, said it’s not unprecedented for the Justice Department to refuse to defend a law it views as unconstitutional, so he doesn’t see their decision as problematic.

“I’ve long held a position that the federal government should get completely out of the health insurance business,” he said. “The last time the health insurance business worked right was before the federal government got involved. So I don’t have any problem going home to defend that.”

Mr. King said Congress should put in place the fixes that Republicans have offered since 2010, such as expansion of tax-advantaged health savings accounts and the sale of insurance across state lines. He said if they could get rid of the filibuster rule in the Senate, then Republicans might be able to rally around an Obamacare alternative.

Last year, the House passed an Obamacare replacement but the Senate failed to pass its own, after three Republicans voted with Democrats to kill a bill that leveraged special budget rules to avoid a filibuster.

Rep. Tom MacArthur, New Jersey Republican, included a provision in the House bill that would have required insurers to cover sicker Americans but allowed states to waive the prohibition on charging them higher premiums.

But, he noted Friday, it included billions in funding to backstop sicker customers’ costs, so they’d be taken care of without forcing healthy consumers to pay higher premiums to cross-subsidize them.

“To not cover them at all, that’s a problem,” he said.

Mr. MacArthur said it would be hard for Congress to revisit the brutal health care fight, although it’s unclear if the lawsuit will get “any legs under it.”

Rep. Leonard Lance, New Jersey Republican, said he wasn’t up to speed on the new case but he’s hopes it will not force Congress to scramble for fixes.

“I favor protecting those in our society with pre-existing conditions, but I don’t want to put the cart before the horse,” said Mr. Lance, who voted against the GOP replacement bill. “I do not believe any court would conclude that that is unconstitutional.”

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