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Department of Justice won’t defend ACA lawsuits and that is a good thing

Written By | Jun 12, 2018

WASHINGTON: Recently Attorney General Jeff Sessions said that the Department of Justice (DOJ) will not defend against the Affordable Care Act – ACA lawsuits challenging the law’s constitutionality. Twenty Republican-led states have filed suit to declare the ACA unconstitutional.

This suit is in spite of a Supreme Court 2010 decision declaring the law constitutional. The plaintiffs argue that because the individual mandate has been repealed, part or perhaps all of the ACA is now not valid.

With no defense, the plaintiffs will win.

The DOJ is not defending the lawsuit since Sessions agrees with the plaintiffs. This despite the Supreme Court saying that forcing individuals to pay a penalty for not buying insurance, is the same a levying a tax. So it is Constitutional.

But the GOP led Congress repealed the individual mandate. So now there is no penalty and therefore no tax.




The plaintiffs will win the argument if there is no defense. A group of 17 Democratic-led states has won standing so they can argue for the ACA, even if the DOJ won’t.

The Trump administration simply wants to repeal the law or at least change it significantly because the current law simply doesn’t work.

There are parts of the ACA that may withstand the lawsuit, which many Americans hope happens. The preexisting condition clause, for instance, is generally supported by both political parties. If the entire ACA is ruled unconstitutional, that provision goes and many Americans will find that problematic.

Creating a sense of urgency.

The Trump administration wants to quickly solve the health care mess. While about 20 million Americans have benefited from the ACA by obtaining health insurance, hundreds of millions more have suffered. Premiums have skyrocketed, Americans were forced to change doctors and doctors’  offices are more crowded.

The Trump approach is to quickly bring both sides to the table to resolve the issues and change or repeal the ACA. There are numerous examples where Trump has successfully employed this “create a sense of urgency” strategy.

In Korea, for instance, Kim Jung Un was threatening nuclear war. Trump tried to handle the situation diplomatically, but Kim continued his aggression. Trump put on devastating sanctions which crippled North Korea, creating a sense of urgency. Kim quickly came to the bargaining table.

If Trump was a true politician or if he followed the political philosophy of the Democratic Party, he would insist on a Republican plan and resist the Democrats. He is not a politician and just wants the problem resolved.

Many of the international free trade agreements the US has with trading partners are unfair to the US. Instead of offering to have discussions, convene summits or take a long time to analyze the problem, Trump created a sense of urgency. He threatened and often imposed, steep tariffs on foreign-made goods.

While our trading partners cried foul and wanted to retaliate, the tariffs created a sense of urgency. Instead of taking months or years to address the issue, countries have been brought to the negotiating table. The trade problem will likely be resolved in the coming months.




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Trump tried to create a sense of urgency to help resolve the immigration issue, especially the DACA children. He said he would use an executive order to reverse DACA. He did this last September but gave Congress until March 5 of this year to come up with a solution. Congress failed to act until the deadline was near.

Trump hoped the deadline would create a sense of urgency so Congress would act. It didn’t work since a federal court said Trump could not do that. The deadline passed. The sense of urgency was gone. The problem is still not solved.

Will a sense of urgency bring members of Congress to the ACA bargaining table?

If current ACA lawsuits are successful and the ACA is declared unconstitutional, people will panic. That will pressure Congress to act quickly, which creates a sense of urgency. Perhaps then the healthcare issue can finally be resolved.

Having Trump as president creates a unique opportunity for Democrats. Trump, being a businessperson and not a politician is primarily concerned with getting results. He is not concerned with political correctness nor is he concerned which political party finds a solution that can be acceptable to the majority of Congress.

If Trump was a true politician or if he followed the political philosophy of the Democratic Party, he would insist on a Republican plan and resist the Democrats. He is not a politician and just wants the problem resolved.

Trump is creating another sense of urgency to bring both sides to the table to fix healthcare. Let’s hope it works.

Michael Busler

Michael Busler, Ph.D. is a public policy analyst and a Professor of Finance at Stockton University where he teaches undergraduate and graduate courses in Finance and Economics. He has written Op-ed columns in major newspapers for more than 35 years.