CHARLESTON, W.Va. — The U.S Department of Justice has switched its position on former President Barack Obama’s health care law after arguing “Obamacare” is unconstitutional three months ago.
The Justice Department notified the Supreme Court on Wednesday of its new stance that the Affordable Care Act should stand, adding the individual mandate can be severed from the rest of the law without effects.
The Supreme Court heard arguments in November regarding the health care law; eighteen Republican-led states — including West Virginia — have argued “Obamacare” is unconstitutional because Congress reduced the penalty for not purchasing health insurance through the 2017 tax law. The Department of Justice under former President Donald Trump supported the challenge.
The Supreme Court held up “Obamacare” in 2012 and 2015; the court ruled in its earlier opinion the individual mandate is constitutional as a tax.
Two federal courts have struck down the individual mandate because of Congress’ action, with a district judge in Texas ruling the entire law is unconstitutional.
Twenty-one Democratic state attorneys general and the U.S. House of Representatives contend the health care law should stand despite the altered individual mandate. The parties also say if the Supreme Court rules the individual mandate is unconstitutional, the rest of the law can function without the provision.
Deputy Solicitor General Edwin Kneedler said the Justice Department — with President Joe Biden now in office — believes the amended individual mandate is constitutional. He added reducing the individual mandate to $0 “preserved the choice between lawful options and simply eliminated any financial or negative legal consequence” for not purchasing health insurance.
“In the view of the United States, that presumption of severability cannot be overcome here, particularly as the 2017 Congress that reduced to zero the amount of the shared responsibility payment option under Section 5000A simultaneously left in place the remainder of the ACA,” he said.
Justices indicated support for maintaining most of the law during the Nov. 10 oral arguments. Chief Justice John Roberts stated if Congress wanted to scrap the health care law, lawmakers would have done so through legislation.
West Virginia is one of 38 states that expanded Medicaid under “Obamacare,” which has resulted in thousands of residents gaining insurance coverage.
“Obamacare” also prohibits insurance companies from denying someone coverage or increasing one’s costs because a person has a preexisting condition. According to the Kaiser Family Foundation, around 382,000 non-elderly West Virginians have a preexisting condition that would not be covered prior to the health care law’s enactment.
Sen. Thom Tillis, R-N.C., announced plans Wednesday to reintroduce the Protect Act, which would maintain the requirement regarding preexisting conditions even if the Supreme Court strikes down “Obamacare.” Sen. Shelley Moore Capito, R-W.Va., is one of the bill’s nine Republican cosponsors.
“Protecting Americans with pre-existing health conditions is simply the right thing to do, and that’s what this legislation does,” Capito said. “I will continue working with my colleagues toward commonsense solutions that result in better health care, affordable coverage, and expanded options for all West Virginians, including those battling the disease of addiction.”
Sen. Joe Manchin, D-W.Va., criticized the bill last September, saying that version of the legislation did not clarify treatments for preexisting conditions exclusions and did not limit how much insurers could charge based on factors like age and gender.
The Department of Health and Human Services will open a special enrollment period next week for Americans needing health insurance. Residents of West Virginia and 35 other states reliant on the federal marketplace have from Monday to May 15 to purchase a plan or enhance their coverage.