A new strategy to defend the federal Affordable Care Act is taking shape in Congress, led in part by New Jersey Democrats, many of whom rode to victory in November on a so-called blue wave fueled largely by anger over Republican efforts to dismantle the law.
U.S. Rep. Frank Pallone, (D-NJ), who now leads a committee with a critical role in regulating healthcare, has introduced a measure enabling the House of Representatives to intervene in a federal lawsuit brought by a collection of Republican-led states challenging the ACA, which the administration of President Donald Trump declined to defend.
Pallone also pledged to hold public hearings on the case, likely starting later this month, terming the lawsuit part of a larger Republican plan to “sabotage” the ACA, or Obamacare. The 2010 law extended health insurance to millions nationwide — including more than 800,000 New Jerseyans — and expanded the scope of coverage for many more.
In December, a federal judge in Texas declared the ACA unconstitutional — a controversial decision now on hold pending an appeal by a coalition of Democratic states, including New Jersey. Their first step is the U.S. Court of Appeals for the Fifth Circuit, based in Texas, but some suggest the case will end up in the U.S. Supreme Court, which upheld the law — in a slightly different form — after a separate challenge, in 2012.
Pallone: TX ruling threatens key protections
In remarks on the House floor Wednesday, Pallone, an author and fierce protector of the law, criticized the Texas judge, saying his decision went beyond the scope of the lawsuit. He also warned the ruling would erode protections for individuals with pre-existing conditions, a group that includes an estimated 3.8 million Garden State residents.
The suit could also end the current restrictions on lifetime limits capping how much insurance companies will have to pay out per patient over time, Pallone said, and exacerbate the proliferation of what he called “junk plans,” or low-cost policies that have only minimal coverage.
“We worked very hard with the ACA to get rid of these discriminatory practices. They would come back again if this lawsuit succeeds,” he said.
Pallone’s initiatives are part of a larger effort by the new Democratic leadership in the House to focus on healthcare and the ACA in particular. When Speaker Nancy Pelosi greeted members on January 3, she acknowledged that healthcare played a critical role in last year’s election, and pledged to lower costs for prescription drugs and protect coverage.
Healthcare was a major issue in NJ elections
Healthcare, and the ACA, was a significant driver in Garden State congressional races, particularly in New Jerseys 3rd District, where Democrat Andy Kim defeated Republican incumbent Tom MacArthur, the author of a key amendment to a failed attempt by the GOP to drastically reform the current law. The issue was also a common theme in Democratic Sen. Bob Menendez’s successful brawl with Republican challenger Bob Hugin, a former pharmaceutical executive.
Many of the state’s Democratic House members also offered support for efforts by Gov. Phil Murphy, a fellow Democrat, to jumpstart enrollment in the ACA during the annual sign-up period; Trump cut the period in half, to six weeks, and suspended much of the outreach funding, including 90 percent of the dollars New Jersey had obtained in the past. Menendez, U.S. Sen. Cory Booker (D-NJ) and seven of the 11 Democratic Congress members, including Pallone, joined Murphy for an event in December to promote the state’s initiative.
Other New Jersey Democratic House members, including newcomers Reps. Tom Malinowski and Mikie Sherrill, joined Pallone in promising to continue to defend the law against ongoing GOP attacks.
“I look forward to joining with the New Jersey delegation in Congress to protect the gains we’ve made under the ACA and to work to improve our healthcare system,” Sherrill said.
Given the committee structure in the House, Pallone, as a leader of the Energy and Commerce Commission — which regulates health insurance — may be in the best position to lead the fight. The Monmouth County-based lawmaker has made clear he plans to do what he can, using methods like the courts and public hearings, since Republicans still control the U.S. Senate and Trump remains in the White House.
The battle plan
The first area of focus is the federal lawsuit, filed last year by the Attorney General in Texas and 19 Republican colleagues from other states. The group alleged that the ACA became invalid when Trump ended the tax penalty associated with the law’s individual mandate, which requires everyone to obtain healthcare coverage. They argued that the mandate — which technically still exists (albeit with no real enforcement mechanism) — is now unconstitutional since it is no longer connected to the tax code, which was used as a legislative vehicle for the original law.
(While the federal penalty ended last year, New Jersey has since adopted its own state penalty in an effort to continue to encourage people to enroll for coverage, which further spreads the financial risk of medical claims and helps stabilize the market.)
But long before the Texas judge issued his hotly contested ruling, Democratic states, led by California, began moving to fill the void left when the Trump administration declined to defend the existing law. The group grew to include 17 states, including New York and Delaware; New Jersey joined the coalition in early April.
“Typically, it’s the responsibility of the U.S. Department of Justice to defend federal laws like the ACA from constitutional attack,” New Jersey Attorney General Gurbir S. Grewal said at the time. “But unfortunately — given everything going on in Washington these days — it’s clear that New Jersey and other like-minded states need to step up to protect the law from yet another meritless legal challenge.”
Meawhile, Pallone on January 3 introduced HR 6, which would tweak House rules to allow the Speaker to “intervene, otherwise appear, or take any other steps” in the Texas case — or in other litigation that arises related to the ACA or protections for those with pre-existing conditions. The language would also enable the House to deploy its own lawyers for this work, or to hire outside counsel and other experts, if needed.