Attorney General Jeff Sessions announced last week that DOJ will not defend certain provisions of the Accordable Care Act in a challenge brought by the attorneys general of 20 states. The coalition of attorneys general filed suit in a Texas Federal court in February seeking to overturn the ACA. The suit’s central argument is that the individual mandate, originally upheld by the U.S. Supreme Court as a permissible tax, is no longer constitutional due to the elimination of the individual mandate penalty. As a result, the suit argues, the remainder of the law must fall because the mandate is a cornerstone of the ACA that cannot be severed. DOJ filed a brief in the case on Thursday in which it agreed that the mandate is unconstitutional, but did not agree that the entire ACA must fall as a result.

DOJ is targeting only two key provisions of the ACA: the guaranteed-issue provision, which prohibits insurers from denying coverage or charging higher rates for pre-existing conditions, and the community-rating provision, which limits insurers from charging consumers premiums that differ based on age or gender. In its brief, DOJ argued that these provisions are not severable because the individual mandate is necessary to prevent adverse selection and broaden the health insurance pool to include healthy individuals, which will in turn lower premiums.

In contrast to the position taken by the plaintiff attorneys general, DOJ argues that the remaining provisions of the ACA are severable and can continue in effect. Those provisions include the establishment of health insurance exchanges and subsidies, the mandate for employers to provide health insurance, the Medicaid expansion, the reduction of reimbursement rates for hospitals, and various health insurance regulations.

Attorney General Sessions explained DOJ’s position in the case in a letter to House Speaker Paul Ryan (R-WI). The letter states that DOJ’s position here is consistent with the position it took under President Obama, noting that DOJ argued in NFIB v. Sebelius that if the individual mandate is unconstitutional then it would be severable from the ACA’s other provisions, with the exception of the guaranteed-issue and community-rating provisions.

The case is Texas v. United States of America, No. 4:18-cv-00167 (N.D. Texas). For a copy of DOJ’s brief, please click here.