WASHINGTON — The Trump administration is asking the Supreme Court to wipe out Obamacare, arguing that the individual mandate is unconstitutional and that the rest of the law must be struck down with it.
The late-night brief, filed Thursday in the middle of the coronavirus pandemic, carries major implications for the presidential election. If the justices agree, it would cost an estimated 20 million Americans their insurance coverage and nullify protections for pre-existing conditions.
The Trump administration’s brief comes as the U.S. has recorded more than 120,000 deaths from COVID-19, with nearly 2.5 million confirmed cases. On Wednesday, the nation hit a new record for the highest daily total of new infections reported with more than 45,500.
For the roughly 25 million people out of work and collecting jobless benefits, the ACA’s marketplaces and Medicaid expansion provide avenues to gain subsidized health insurance with consumer protections.
Trump campaigned in 2016 on repealing the ACA but fell just short in Congress in 2017. His legal position is consistent with his determination to undo President Barack Obama’s achievements.
Health care is a top issue for voters in surveys, and presumptive Democratic nominee Joe Biden — the vice president when Obamacare, also known as the Affordable Care Act, was signed into law — has made it a high priority to protect and enhance it if elected.
In the brief, U.S. Solicitor General Noel Francisco and other Justice Department officials sided with Texas in a case led by Republican attorneys general, arguing that the requirement for people to buy insurance is no longer valid after Congress scrapped the penalty for non-compliance in 2017.
The Justice Department added: “The individual mandate is not severable from the rest of the Act.”
The brief includes a section pointedly arguing that the Affordable Care Act’s pre-existing condition rules must be overturned as well. Those rules forbid insurers from turning away customers or charging them more on the basis of factors like age, gender and health status. The position contradicts Trump’s insistence that he will protect people with pre-existing conditions.
The White House has not offered a replacement proposal if the case succeeds in court.
While the idea of overturning the ACA is popular with conservatives, some Republicans want to drop the issue for fear of political blowback in an already difficult political climate. The backlash to Republican efforts to undo Obamacare helped Democrats capture the House majority in 2018.
Sen. Lamar Alexander, R-Tenn., the chair of the Senate health committee, has called the Justice Department’s position “far-fetched.”
The case is seen by legal experts as a long shot. Five justices who upheld Obamacare against a constitutional challenge in 2012 remain on the court — Chief Justice John Roberts and the four liberal-leaning members.
House Speaker Nancy Pelosi, D-Calif., criticized the DOJ’s late-night filing.
“President Trump and the Republicans’ campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty,” she said in a statement Thursday night.