The filing came in a case where a group of 20 Republican state attorneys general is seeking to strike down the law.
Moderate GOP lawmakers said the Justice Department’s brief, which supports much of the states’ position, has created an unwelcome emphasis on health care ahead of the midterms elections. Some said they disagree with the administration’s stance, and most said they would rather talk about tax cuts and other issues on the campaign trail.
Republicans in competitive districts, including GOP Reps. Leonard Lance of New Jersey,
John Faso
of New York and
Carlos Curbelo
of Florida, stressed on Friday their support for guaranteeing coverage for pre-existing conditions.
Mr. Faso said Congress should be prepared to take action if there were a legal reason that led to the administration filing the brief. “If indeed there is a flaw that has them no longer defending because of a legal issue, we should fix that,” he said.
But it is a boost for conservative Republicans who want to show voters that they haven’t given up on repealing the law. These lawmakers hope to demonstrate that they are working hard to dismantle a law that they see as a federal overreach that has driven up premiums. A coalition of conservative groups is also poised to release details of a plan to repeal and replace the health law.
The divided stance on whether to still focus on striking down the 2010 law, a rallying cry during the Democratic administration of former President
Barack Obama,
reflects a rift among Republicans. The split could muddy efforts to present a strong, unified response to Democrats who are now stepping up attacks on GOP candidates over health care.
“Republicans are going to avoid the health-care issue,” said Robert Blendon, a health-policy expert at Harvard T.H. Chan School of Public Health. “There’s no win for Republicans getting into health care on this.”
The lawsuit filed in February focuses on the individual mandate, which is the requirement that most people have health coverage or pay a penalty. Congress repealed the penalty last year, although the requirement technically remains in place. Texas and other Republican-led states that brought the case argue the law and its mandate are unconstitutional now that Congress has erased the monetary punishment for not carrying insurance.
With President
Donald Trump’s
administration abandoning the law, a group of 16 Democratic-led states and the District of Columbia intervened to defend it. Immediately eliminating the law’s protections “would cause catastrophic harm to tens of millions of Americans,” they argued in a brief filed Thursday by California Attorney General
Xavier Becerra,
a Democrat.
The states argued that since Congress repeatedly rejected proposals to repeal the health-care law, it would be bizarre to see it collapse because of a single provision of a sprawling tax measure largely focused on other matters. But if the court were to find the minimum-coverage requirement unconstitutional without the tax penalty, “the proper remedy is to…revert back to the prior statutory provision which was upheld” by the Supreme Court—that is, to reinstate the tax penalty.
The Justice Department didn’t go as far as calling for a halt to the entire law, but it did argue that the mandate and two of the law’s other central provisions should be invalidated as of Jan. 1.
“Don’t understand the reasoning,” for filing the brief, said Rep. Dave Trott (R., Mich.), who voted earlier this year to repeal the law, an effort that passed the House but failed in the Senate. He said he hadn’t read the administration’s explanation in the brief, but protection for pre-existing conditions “was one of the good changes with the Affordable Care Act, so I can’t imagine a majority of Congress ever supporting anything that would go in a different direction.”
Democrats are already on the offensive. On Friday, Democratic challenger Andy Kim said Republican
Tom MacArthur
(R., N.J.) should publicly demand that Mr. Trump, a Republican, defend pre-existing health protections.
Mr. MacArthur, who helped lead negotiations last year on a contentious piece of the House GOP health-care bill, said it wasn’t a good time to be reducing coverage as the opioid epidemic wracks the country.
“That’s a pretty essential pact with the American people,” he said of the guarantee of coverage for people with pre-existing conditions. “To not cover them at all, I think that’s a problem.”
The lawsuit, filed in a Texas federal court, has been assigned to U.S. District Judge Reed C. O’Connor, an appointee of former President
George W. Bush,
a Republican. He previously ruled in 2016 against a regulation in the law banning discrimination against transgender patients, and legal observers see him as potentially sympathetic to the plaintiffs’ case.
The litigation will likely linger through the midterm elections and into next year.
If the case eventually goes to the U.S. Supreme Court, it could place a renewed spotlight on Chief Justice John Roberts, who in 2012 joined with liberal justices to uphold that the individual mandate. The chief justice found the insurance requirement was constitutional under Congress’s authority to levy taxes. Now, the state challengers are arguing the lack of a penalty for skipping health coverage means the mandate can’t be upheld through the taxing power.
“The Supreme Court has to take it. They have to,” said Paul Larkin, a senior legal research fellow at the Heritage Foundation, a conservative think tank. “They created this pickle because Roberts voted on grounds that no longer exist.”
Democrats on Friday criticized the administration’s decision and said they would be raising awareness of the GOP attacks on the law.
“This gets to the heart of why the Affordable Care Act was so important,” said
Rep. Cheri Bustos
(D., Ill.). “I don’t know a soul who doesn’t know somebody or have somebody in their family without a pre-existing condition.”
—Siobhan Hughes, Jess Bravin and Brent Kendall contributed to this article.
Write to Stephanie Armour at stephanie.armour@wsj.com and Kristina Peterson at kristina.peterson@wsj.com
Article source: https://www.wsj.com/articles/focus-on-health-care-jolts-gop-ahead-of-midterms-1528495625