Senator Collins Calls on AG Barr to Justify Decision Not to Defend ACA’s Protections for Pre-Existing Conditions and Other Critical Consumer Protections

Click HERE to watch Senator Collins’ Q&A.  Click HERE for the high-resolution video.

Washington, D.C. — U.S. Senator Susan Collins, a senior member of the Appropriations Committee, pressed U.S. Attorney General William Barr to explain the Department of Justice’s (DOJ) decision to no longer defend any of the Affordable Care Act’s provisions due to the unconstitutionality of the individual mandate at a hearing today to review the DOJ’s fiscal year 2020 budget request.  This decision puts at risk not only critical consumer provisions such as those protecting individuals suffering from pre-existing conditions, but also other important provisions, such as the Medicaid expansion, dependent coverage for young adults to age 26, coverage for preventive services, and the regulatory pathway for FDA approval of biosimilars.

In a letter to then-Attorney General Jeff Sessions last June and a letter to Attorney General Barr earlier this month, Senator Collins called on the DOJ to reverse course and defend these critical protections. 

In 1990, Attorney General Barr authored an opinion finding that the President could enforce the remainder of a statute after an unconstitutional provision had been severed.  Senator Collins asked why Attorney General Barr chose to take a different view in this case.

“The individual mandate is a highly regressive penalty, and I've long opposed it and Congress repealed it.  However, I disagree strongly with the Department's decision not to defend the rest of the ACA,” said Senator Collins.  “In 1990, when you were head of the Department's Office of Legal Counsel under President George Herbert Walker Bush, you authored an opinion finding that the president could enforce the remainder of the statute after an unconstitutional provision had been severed.  I agree wholeheartedly with your 1990 opinion.”

Attorney General Barr responded that he believed that the DOJ’s decision is “a defensible and reasonable legal position.”  He acknowledged, however, that Congress eliminated the individual mandate penalty while keeping the rest of the ACA intact: “I know there's an additional point there, which is the fact that Congress did take out the penalty from the mandate and, therefore, should that act be viewed as essentially validating the rest of the statute. Those issues were debated, but at the end of the day I felt that the position was a defensible position and it was the decision of the executive branch.”

Senator Collins reinforced this point, noting that, “Congress had the opportunity to strike other provisions and chose not to.”

Senator Collins is a longtime advocate for those with pre-existing conditions.  In July 2017, she voted to block several proposals to repeal the ACA, which would have reduced these protections.