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Republican attorneys general, DOJ submit briefs in ‘Obamacare’ lawsuit

CHARLESTON, W.Va. — Eighteen state attorneys general and the U.S. Department of Justice have filed their opening briefs in the legal challenge to former President Barack Obama’s health care law with the U.S. Supreme Court.

The briefs filed Thursday argue the law is no longer constitutional because Congress zeroed out the individual mandate penalty for not purchasing health insurance almost three years ago.

“In 2017, Congress amended section 5000A to set the tax penalty for violating the mandate to zero. That change made it impossible to fairly interpret section 5000A as a tax,” the attorneys general argue.

“Without these characteristics, section 5000A is an unadorned command to Americans to participate in commerce. Such a command is unconstitutional.”

The attorneys general — which includes West Virginia’s Patrick Morrisey — and the Justice Department have argued the individual mandate is crucial for the law to function, and altering the provision affected multiple parts of “Obamacare.”

“Both Congress and the Department of Justice have repeatedly described the mandate as essential to the ACA’s community-rating and guaranteed-issue provisions. And this Court has observed that those provisions ‘would not work’ without the mandate,” the Republican state coalition argues in its brief. “Likewise, the various other provisions in the ACA — both major and minor — cannot operate in the manner Congress intended without the three-legged stool that props up the ACA’s essential features.”

If the law is stuck down, it would mean the end to its provisions — including ensuring coverage of pre-existing conditions and state Medicaid expansion efforts — as well as funding states receive for health care needs.

The proceedings in the nation’s highest court follow a federal appellate court decision made last December striking down the individual mandate, yet leaving the remainder of the Affordable Care Act to a lower federal court. A coalition of Democrat attorneys general and the U.S. House of Representatives filed briefs last month in support of upholding the law, arguing Congress reduced the penalty in the 2017 tax law while purposefully not changing the rest of “Obamacare.”

The Justice Department disputed the argument, saying nothing lawmakers did in the bill shows Congress intended the rest of the law to function.

“The entire ACA thus must fall with the individual mandate, though the scope of relief entered in this case should be limited to provisions shown to injure the plaintiffs,” the department noted.

West Virginia Attorney General Patrick Morrisey

Morrisey previously said he supports the provision maintaining insurance coverage for pre-existing conditions. The attorney general backed a bill during this year’s legislative session that would have prohibited insurance providers from limiting insurance coverage if the court struck down “Obamacare.”

Curtis Johnson, press secretary for the state Office of the Attorney General, reaffirmed Morrisey’s stance in a statement to MetroNews.

“Protecting those with preexisting conditions remains a top priority for Attorney General Morrisey, and our coalition’s brief continues his multi-faceted effort to help all West Virginians overcome the failings of Obamacare — chiefly its unmanageable, skyrocketing premiums and its unconstitutional individual mandate — while also remaining deeply committed to ensuring health care for those with preexisting conditions, a position long held by Attorney General Morrisey and one for which he set forth a state-based solution that he vigorously fought for earlier this year,” he said.

A 2018 West Virginia University study estimates 718,000 non-elderly West Virginians have a pre-existing condition. The state Department of Health and Human Resources reported in May around 162,000 people are enrolled in the state’s Medicaid expansion program, which was launched in 2014.

The U.S. Centers for Medicare and Medicaid Services issued a report Thursday noting around 487,000 Americans have gained health insurance coverage through through special enrollment in light of losing their job because of the coronavirus. The Democratic states referenced the pandemic in their brief, saying the virus “made it impossible to deny that broad access to affordable health care is not just a life-or-death matter for millions of Americans, but an indispensable precondition to the social intercourse on which our security, welfare, and liberty ultimately depend.”

The Republican attorneys general responded to the claim by arguing a pandemic cannot create constitutional powers.

“The ACA contains an unconstitutional command that can no longer be saved as a tax. The ACA itself insists that its other major health-insurance reforms rise and fall with this unconstitutional command. And those reforms were the core of the ACA,” the GOP brief said.

Kelly Allen

Kelly Allen, the interim deputy director of the West Virginia Center on Budget and Policy, said the effects of ending “Obamacare” would be monumental.

“I think folks should be extremely concerned,” she told MetroNews. “This doesn’t only impact West Virginia residents, although it impacts many of us. The folks that rely on the Medicaid expansion, and many of us who get these pre-existing condition protections through whatever source of insurance that we have.”

Allen also noted Morrisey’s legislative proposal, saying it did would not have recouped the federal funding the state would lose if the Supreme Court rules the law is unconstitutional.

“Pre-existing protection in name only doesn’t help people afford coverage that covers pre-existing conditions is pretty worthless to folks, honestly,” she said.

Sen. Joe Manchin, D-W.Va., has criticized Morrisey for his involvement in the lawsuit and additionally attempted to get the Senate Legal Counsel involved in the matter.

“I’ve said again and again that the ACA is not perfect but we simply cannot throw the baby out with the bathwater, especially during a global health crisis that has already killed 92 West Virginians and over 120,000 Americans,” the senator stated Thursday.

“I will continue to work with my colleagues in Congress to pass commonsense, bipartisan legislation to fix our current healthcare system without kicking millions of Americans off of their insurance. And I will keep fighting to expand healthcare coverage for Americans who have lost their employer insurance due to the COVID-19 pandemic in future relief packages. These repeated attacks on the health and well-being of hard working West Virginians are unacceptable and I will not stop fighting until every West Virginian has protected access to quality, affordable health insurance.”

The Democratic states and House of Representatives have until July 29 to submit reply briefs.

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