The Trump administration told a federal appeals court Monday it thinks all of Obamacare is unconstitutional, marking an escalation in its fight against the 2010 law.
Justice Department lawyers previously had argued that if the courts found Obamacare’s “individual mandate” is no longer constitutional, then a narrow slice of the program — consumer protections for people with pre-existing conditions — could not stand, either.
A federal judge in Texas went much further in a December ruling, agreeing with plaintiff states who said the whole law should be invalidated. On Monday, administration lawyers said they’re fine with that.
“The Department of Justice has determined that the district court’s judgment should be affirmed,” they wrote to the 5th U.S. Circuit U.S. Court of Appeals.
Underscoring that point, they’re not urging the court to reverse any of U.S. District Court Judge Reed O’Connor’s decision.
The administration’s position will breathe new life into the never-ending battle over Obamacare.
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Democrats say the administration is playing with fire by refusing to defend the federal health care law against the suit, which was filed last year by more than a dozen Republican-led states. They say President Trump is leveraging the courts to try and secure the full Obamacare repeal that eluded him in 2017, despite having a GOP-led Congress.
“Tonight in federal court, the Trump administration decided not only to try to destroy protections for Americans living with pre-existing conditions but to declare all-out war on the health care of the American people,” House Speaker Nancy Pelosi said late Monday.
Mr. Trump has found ways to chip away at parts of Obamacare. Most notably, he urged Republicans to zero out Obamacare’s mandate penalty for shirking insurance when it passed its tax overhaul.
State GOP plaintiffs seized on that change, reasoning that if the mandate is no longer collecting money, is it no longer a “tax” as Chief Justice John G. Roberts said when upholding the health law in 2012.
Blue-state attorneys general have argued in court the mandate is still on the books and, furthermore, Congress clearly intended to leave the rest of the law alone when it gutted the mandate.
The simmering debate played a pivotal role in the midterm elections. Democrats said the GOP didn’t have a backup plan if the lawsuit succeeded, citing their previous failure to replace the law with something better. Democrats retook the House.
Yet Josh Hawley, who joined the anti-Obamacare lawsuit as Missouri’s attorney general, defeated Sen. Claire McCaskill on election night and is now a sitting senator.
The administration’s decision to fully back the lawsuit will loom large on Tuesday when Democrats plan to propose measures that would make Obamacare more generous and combat Mr. Trump’s changes to the program, which they’ve dubbed “sabotage.”
Democrats are looking to regain their political footing, anyway, as Mr. Trump taunts them over the results of special counsel Robert Mueller’s two-year investigation, which found no collusion between his campaign and Russian meddlers.
“The Barr summary clearly demonstrates that Republicans are trying to take your healthcare away,” Sen Brian Schatz, Hawaii Democrat, tweeted — a wry allusion to Attorney General William Barr’s summary of the Mueller findings.
Yet Mr. Trump appears ready to dig in for a fight over health care, too.
He’s fumed in recent weeks over late Sen. John McCain’s decision to give GOP repeal plans a thumbs down in 2017, and the White House’s fiscal 2020 budget says Obamacare should be replaced with fixed grants that allow states to spend federal health