A photo of Jeff Sessions.

Attorney General Jeff Sessions.
Photo credit: Mark Reinstein / Shutterstock

While we were gawking with awestruck train-wreck fascination at the circus of the G7 Summit in Quebec, the Trump administration quietly did something that could, for all intents and purposes, repeal the Affordable Care Act.

Many people seemed to believe the ACA was safe after several congressional efforts to repeal the law failed to do so, but the president’s administration found a way that we may not have anticipated. Last week, President Trump’s Justice Department filed a brief in a Texas federal court saying it would not defend the constitutionality of the Affordable Care Act. The department says the ACA provision requiring most Americans to get health insurance or face a tax penalty will soon be unconstitutional; thus, it will not defend any other sections of the act, including the consumer protections under the law.

Why is that a big deal? The most popular part of the Affordable Care Act—coverage for pre-existing conditions—would no longer exist. What that means to you: if you ever had illnesses like cancer or depression, or even allergies, you could be denied coverage if your illness recurs. You may think this isn’t a problem for you because you don’t have any pre-existing conditions. However, your insurance company could differ and either jack your premium sky-high or simply deny you a policy.

Civics Lesson: The Affordable Care Act (ACA)

A photo of a man holding a sign that reads, "Health care for all now!"The Patient Protection and Affordable Care Act of 2010, also known as “Obamacare,” has gone a long way toward providing and improving health coverage for Americans. A major goal of the act is to lower the cost of Medicare and Medicaid, which are responsible for more expenditures than any other federal budget item, including the defense budget. Medicare now pays hospitals based on how much better patients get rather than how many tests are ordered. It also mandated that medical records be recorded electronically so that doctors, hospitals, and pharmacists can work together to improve patient health outcomes.


The act has already improved health care by requiring that all health plans must provide 10 essential benefits. Plans cannot exclude people with pre-existing conditions or drop coverage for those who get sick. It eliminates lifetime or annual coverage limits, which is very important if you get an “expensive illness.” It also allows parents to keep their children up to age 26 on their policies.

Unfortunately, 60 percent of those who are eligible for subsidies to help them pay for their insurance premiums don’t know that. Seventeen million people who don’t have employer-provided health insurance, make too much money for Medicaid, and are legal residents of the United States are eligible for subsidies—but only 6.6 million people signed up to receive them.

Photo credit: Heidi Besen / Shutterstock

If you think it’s only individual policies that would be affected, you’re wrong: employer-provided health insurance policies most likely would follow suit.

Keep in mind that President Trump addressed a February 2017 joint session of Congress where he said that it was his priority to “ensure that Americans with pre-existing conditions have access to coverage.” Speaking out of the other side of his mouth, the president signed a tax bill reducing the penalty for not having health coverage to zero, thus gutting one of the most important measures to keep the ACA sustainable.

Although the tax legislation passed by Congress and signed by President Trump torpedoed the individual mandate, it did leave pre-existing condition coverage intact. This implies that Congress and President Trump believed one requirement could survive without the other. So, why is the Justice Department now deciding that it won’t defend the constitutionality of the law?

Attorney General Jeff Sessions wrote in a letter to Congress, “The Executive Branch has a longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense.” He added, “[T]his is a rare case where the proper course is to forgo defense” of not only the individual mandate but also of two provisions that are intertwined with it—“guaranteed issue” (requiring insurance companies to provide coverage for people with pre-existing conditions) and “community rating” (charging higher premiums due to individuals’ medical history).

The Trump administration is not the first to have refused to defend a duly enacted law. In 2011, President Barack Obama chose not to defend the Defense of Marriage Act’s provision that forbade federal recognition of same-sex marriage. Ironically, The Washington Post ran an editorial saying, “What…if a conservative Republican administration in the future attempted to sabotage the Obama health care initiative by refusing to defend it against constitutional attack?”

Sadly, it appears that the Post’s editorial board predicted the future.

In this case, the Trump administration’s refusal to let the Justice Department defend the Affordable Care Act against lawsuits alleging the unconstitutionality of the law does nothing but injure ordinary Americans, including many of President Trump’s supporters.

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