DOJ Won’t Defend the ACA Individual Mandate and Related Provisions

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The Trump administration has decided not to defend the Affordable Care Act’s (ACA) individual mandate, or certain provisions it considers to be inseparable from the mandate, from an ongoing constitutional challenge. The U.S. Department of Justice (DOJ) has asked the court hearing the case to declare these provisions invalid as of January 1, 2019.

Source: Michail_Petrov-96

While the individual mandate itself already was effectively nullified by last year’s Tax Cuts and Jobs Act (TCJA), the invalidation of ACA guaranteed issue and community rating provisions could have a substantial impact on the individual insurance market, and possibly the group market as well.


After passage of the TCJA, which zeroed out the “individual shared responsibility” penalty beginning in 2019, 20 states and two individuals filed suit alleging that this change undercut the basis for the U.S. Supreme Court majority’s decision in National Federation of Independent Business (NFIB) v. Sebelius, 567 U.S. 519 (2012).

In the NFIB case, five justices decided Congress could not mandate the purchase of health coverage, but one of them, Chief Justice John Roberts, determined that the individual mandate could still pass muster if it were construed as a tax. Statutes should be construed to survive constitutional challenge if possible, and the mandate

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