Maine’s senior senator is arguing that the president is taking the wrong approach in his latest effort to kill his predecessor’s signature health care plan. Republican U.S. Sen. Susan Collins is urging Attorney General William Barr to reconsider the U.S. Justice Department’s move to dismantle the Affordable Care Act to fulfill a campaign promise from President Donald Trump.
“Rather than seeking to have the courts invalidate the ACA, the proper route for this administration to pursue would be to propose changes to the ACA or to once again seek its repeal,” Collins wrote in a letter to Barr on Monday. “The administration should not attempt to use the courts to bypass Congress. The Administration should reconsider its decision and defend the remainder of the ACA.”
The Justice Department filed its position a week ago in the U.S. Fifth Circuit Court of Appeals in New Orleans arguing that the entire law should be invalidated. This comes after a Texas federal judge in December found the individual mandate provision in the law to be unconstitutional.
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Rather than call for its complete repeal through the courts, the Trump administration should treat the individual mandate portion of the law as “severable,” Collins said. In other words, overturn that particular provision without invalidating the remaining protections in the law, which includes Medicaid expansion, consumer provisions protecting those with pre-existing conditions and coverage for young adults to age 26.
Though the ACA does not include a severability clause, based on legal precedence, it doesn’t need one, she said, citing a decision Barr made while attorney general under former President George H.W. Bush. Barr at the time decided that president could “enforce the remainder of a statute after an unconstitutional provision had been severed. That opinion made no mention of whether the underlying statute contained a severability clause,” Collins wrote.
The ultimate decision to repeal the ACA, either comprehensively or piecemeal, should ultimately fall to Congress, and since Congress opted in 2017 not to eliminate certain consumer protections within the law, she said the judicial and executive branches should not circumvent the legislative branch.
“If Congress had intended to eliminate these consumer protections along with the individual mandate, it would have done so,” she wrote. “It chose not to do so.”
Collins voted against implementation of the ACA, but she was one of three Republican senators to break ranks with majority colleagues to vote against full repeal in 2017.