WASHINGTON — After failing to repeal the Affordable Care Act with a Republican-controlled Congress, the Trump administration is seizing on a different strategy for dismantling the law, one fraught with political risk.
Already, Democratic candidates in the midterm elections had been playing up their party’s role in blocking last year’s repeal efforts and their recent success in pushing for the expansion of Medicaid in two more states. Now they have a new talking point, and they lost no time testing it.
Republicans are divided between conservatives who had vowed to eliminate the law and moderates, some in tough races, who want to preserve the popular protections for people who are sick.
Asked about the Justice Department move, Jesse Hunt, a spokesman for the National Republican Congressional Committee, spoke instead about the Democrats.
“Democrats destroyed the health care system as we knew when they rammed Obamacare down our throats,” he said in an email, “and now all they can talk about is moving to a single-payer health care system.”
The Affordable Care Act has already survived several court challenges, and this latest test of its durability could take months or years to go through the legal system. But the uncertainty it creates in the meantime could rattle the law’s insurance marketplaces just as insurers are starting to file rate requests for next year. The companies were already nervous because of Congress’s decision last year to eliminate the penalty for going without health coverage.
Recent polling has found that health care is a crucial issue for voters this year. In an NBC News/Wall Street Journal poll released this week, 22 percent of respondents said it would be the most important factor in deciding their vote, ahead of the economy, guns, taxes and immigration.
In the past, polls have found that both Republicans and Democrats favor protecting coverage for the tens of millions of Americans with pre-existing conditions. A December 2016 poll by the nonpartisan Kaiser Family Foundation found that 75 percent of Democrats and 63 percent of Republicans approved of the law’s provision prohibiting insurance companies from denying coverage based on a person’s health status or medical history. Even President Donald Trump called it one of the law’s “strongest assets” during an interview with “60 Minutes” shortly after he won the election.
The issue became a flash point that helped derail Republican efforts to repeal the law last year, with opponents of the party’s health bills speaking loudly against weakening protections for the sick and vulnerable.
Sen. Brian Schatz, D-Hawaii, predicted that the resurrection of the issue would mobilize voters, saying, “There’s nothing quite like the administration taking an action in court to illustrate the simple fact that they are still coming after your health care.”
Democrats around the country were already working hard on Friday to get that message across. In Pennsylvania, where Republicans last month nominated Rep. Lou Barletta for Senate, the state Democratic Party issued a statement that warned, “Donald Trump’s lapdog Lou Barletta will throw his full support behind this attempt to end coverage for people with pre-existing conditions.”
Sen. Susan Collins, R-Maine, who voted against the Republican repeal bills in the Senate last year, also expressed concern about the administration’s new push, saying it “creates further uncertainty that could ultimately result in higher costs for millions of Americans and undermine essential protections for people with pre-existing conditions, such as asthma, cancer, heart disease, arthritis and diabetes.”
But that was not the talking point of the party’s re-election arm. Hunt shifted the focus to Democratic calls for a single-payer system, saying, “Massive tax increases and reduced quality of care are about as popular as its architect: Nancy Pelosi.”
Republicans have been trying to dismantle the Affordable Care Act — a centerpiece of President Barack Obama’s legacy — since it was enacted in 2010 without any Republican votes. Attempts to repeal it in Congress have failed, but opponents of the law have also filed scores of lawsuits challenging various provisions.
The Supreme Court in 2012 upheld a major provision of the law that required most Americans to have health insurance or pay a tax penalty. The court said that while this “individual mandate” exceeded Congress’ power to regulate commerce, it could be upheld as an exercise of Congress’ taxing power. But last year the Republican-controlled Congress eliminated those penalties as part of the $1.5 trillion tax overhaul that Trump signed in December.
Two months later, Texas and the 19 other states filed suit in U.S. District Court in Fort Worth, asserting that the mandate could no longer be justified as a tax and should therefore be struck down — and arguing that as a result, the rest of the law must be invalidated, too.
The Justice Department brief did not go so far, but it said that Judge Reed O’Connor should void both the mandate and the protections for people with pre-existing medical conditions, while leaving in place the expansion of Medicaid in more than 30 states.
Attorney General Jeff Sessions said it is “a rare case” for the Justice Department not to defend provisions of a law but added that he could not find any “reasonable arguments” to support their constitutionality.
If the administration prevails in the case, the full force of the decision would not hit until after the midterm elections on Nov. 6. But insurers said the legal debate alone could cause turmoil in insurance markets this summer.
“At the very least it adds uncertainty at exactly the moment when plans are trying to set rates for next year,” said Ceci Connolly, the chief executive of the Alliance of Community Health Plans. “At the worst it could strip away guaranteed coverage for those with pre-existing conditions.”
The main trade association for health insurers came out strongly against the administration’s position.
“Removing those provisions will result in renewed uncertainty in the individual market, create a patchwork of requirements in the states, cause rates to go even higher for older Americans and sicker patients, and make it challenging to introduce products and rates for 2019,” said Matt Eyles, the president and chief executive of America’s Health Insurance Plans, a trade group for insurers.
The Trump administration’s move fueled accusations that it was politicizing the Justice Department, which is supposed to defend the constitutionality of federal statutes in court — even if the administration in power does not like them — if reasonable arguments can be made.
Donald B. Verrilli Jr., a solicitor general in the Obama administration, said there were obviously reasonable arguments that could be made in defense of the Affordable Care Act in the Texas case, pointing to those in a brief filed Thursday by California and 15 other states.
“Just read the brief of the states that intervened to defend the law. A compelling defense of the law is right there in black and white,” Verrilli said in a statement. “This is a sad moment.”
Three career lawyers in the department’s civil division withdrew from the case earlier Thursday and did not sign the brief. A Justice Department spokeswoman said the lawyers’ withdrawal had been a department decision, declining to specify whether the lawyers had personally objected to continuing on the case. But Martin S. Lederman, a Georgetown University law professor who was a Justice Department official in the Obama administration, called the mass withdrawal a likely sign of distress.
“Justice Department attorneys don’t withdraw from cases simply because the government is making an argument the lawyers think the courts should or would reject,” he said. “Such withdrawals are exceedingly rare — typically only when the argument is indefensible, as they are here.”
The Trump administration’s move drew comparisons to the Obama administration’s decision, in 2011, to stop defending the constitutionality of the Defense of Marriage Act, a law that barred federal recognition of same-sex unions that were lawful at the state level, and which the Supreme Court later struck down. Conservatives at the time accused the Justice Department of politicization.
The Texas case will be decided first by O’Connor, a conservative appointee of President George W. Bush. The case would then go to the 5th U.S. Circuit Court of Appeals, where appointees of Republican presidents hold a 10-5 majority over Democratic appointees. Whatever the lower courts decide, the case seems destined to reach the Supreme Court.
This article originally appeared in The New York Times.