A harm­ful at­tack on peo­ple with pre­ex­ist­ing con­di­tions

The Washington Post Sunday - - THE WORLD - RUTH MAR­CUS ruth­mar­cus@wash­post.com

A con­tin­u­ing chal­lenge of cov­er­ing the three-ring cir­cus that is the Trump ad­min­is­tra­tion is not let­ting the out­ra­geous an­tics and state­ments of the pres­i­dent and his al­lies dis­tract at­ten­tion from the out­ra­geous poli­cies be­ing im­ple­mented on his watch.

One ex­am­ple, un­fold­ing right now in the midst of the pres­i­dent’s var­i­ous rhetor­i­cal wars — with our Group of Seven part­ners, with the spe­cial coun­sel, with his own at­tor­ney gen­eral — is the ad­min­is­tra­tion’s re­mark­able move not to de­fend the con­sti­tu­tion­al­ity of key parts of the Af­ford­able Care Act.

This is a huge deal. First, if the ad­min­is­tra­tion’s po­si­tion pre­vails, millions of Amer­i­cans will lose the pro­tec­tions they thought they had against be­ing de­nied cov­er­age if they suf­fer from pre­ex­ist­ing con­di­tions. Sec­ond, and per­haps even scarier, the ad­min­is­tra­tion’s be­hav­ior sets a dan­ger­ous prece­dent about the obli­ga­tion of this and fu­ture pres­i­dents to fol­low their con­sti­tu­tional duty to faith­fully ex­e­cute the laws en­acted by Congress.

Some back­ground: The Af­ford­able Care Act re­quired most Amer­i­cans to ob­tain health in­sur­ance and im­posed a penalty, ad­min­is­tered by the In­ter­nal Rev­enue Ser­vice, on those who failed to com­ply. In uphold­ing the con­sti­tu­tion­al­ity of the ACA, the Supreme Court found that the in­di­vid­ual man­date ex­ceeded Congress’s power un­der the Com­merce Clause but none­the­less up­held the re­quire­ment as a le­git­i­mate ex­er­cise of Congress’s power to tax. In last year’s tax bill, Congress ef­fec­tively re­pealed the in­di­vid­ual man­date by set­ting the penalty for non­com­pli­ance at zero, be­gin­ning next year. Twenty states then sued, claim­ing that be­cause no tax rev­enue is to be col­lected as a re­sult of the in­di­vid­ual man­date, the re­main­der of the law is un­con­sti­tu­tional as well.

On Thurs­day, the Jus­tice De­part­ment de­clined to do its job — that is, to de­fend the laws of the United States when at­tacked in court. “The Ex­ec­u­tive Branch has a long­stand­ing tra­di­tion of de­fend­ing the con­sti­tu­tion­al­ity of duly en­acted statutes if rea­son­able ar­gu­ments can be made in their de­fense,” At­tor­ney Gen­eral Jeff Ses­sions wrote in a let­ter to Congress.

Still, he said, “this is a rare case where the proper course is to forgo de­fense” — not just of the in­di­vid­ual man­date but also of two in­ter­twined pro­vi­sions, “guar­an­teed is­sue” (re­quir­ing in­sur­ance com­pa­nies to pro­vide cov­er­age to those with pre­ex­ist­ing con­di­tions) and “com­mu­nity rat­ing” (charg­ing higher pre­mi­ums on the ba­sis of med­i­cal his­tory).

This is crazy. No­body imag­ined — not mem­bers of Congress who hap­pily gut­ted the in­di­vid­ual man­date, not Pres­i­dent Trump in sign­ing the new law, not mem­bers of the pub­lic who wanted to learn about what the tax change meant for them — that the con­se­quence was also to evis­cer­ate per­haps the most pop­u­lar part of the health-care law, the pro­tec­tion for those with pre­ex­ist­ing con­di­tions.

You might have thought if that was go­ing to hap­pen, it would have come up at some point in the pub­lic de­bate. You might have thought it would re­ceive some no­tice from the pres­i­dent, who in his first ad­dress to a joint ses­sion of Congress pro­claimed that it was his pri­or­ity to “en­sure that Amer­i­cans with pre­ex­ist­ing con­di­tions have ac­cess to cov­er­age,” and who signed the tax law with­out any peep about this pro­vi­sion’s sup­posed un­con­sti­tu­tion­al­ity.

In writ­ing the tax law, Congress neutered the in­di­vid­ual man­date but left the pre­ex­ist­ing con­di­tions pro­vi­sion in place — which sug­gests, not­with­stand­ing the Jus­tice De­part­ment’s ar­gu­ment now, that it be­lieved one re­quire­ment could sur­vive sep­a­rate from the other. Where’s the un­con­sti­tu­tion­al­ity — the kind of man­i­fest un­con­sti­tu­tion­al­ity that would jus­tify aban­don­ing the duty to de­fend a statute — in that?

Which brings us to the De­fense of Mar­riage Act, and Pres­i­dent Barack Obama’s 2011 cor­rect but risky de­ci­sion not to de­fend the law’s pro­hi­bi­tion on fed­eral recog­ni­tion of same­sex mar­riage. As The Post’s Ed­i­to­rial Board wor­ried at the time, “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?”

What if, in­deed. But the dif­fer­ence is that the Obama ad­min­is­tra­tion chose not to de­fend a statute whose con­sti­tu­tional re­pug­nance had grown too ob­vi­ous to ig­nore; in the 15 years since its pas­sage, as then-At­tor­ney Gen­eral Eric H. Holder Jr. noted in an­nounc­ing the change, the le­gal land­scape had been trans­formed, in­clud­ing the Supreme Court rev­ers­ing it­self on laws crim­i­nal­iz­ing ho­mo­sex­ual con­duct.

Here, the in­jury to the Con­sti­tu­tion is un­clear at best. The in­jury to con­gres­sional in­tent, and to Amer­i­cans who re­lied on prom­ises of pro­tected cov­er­age, is ev­i­dent.

This is not a slip­pery slope. It is a ski jump into law­less­ness.

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