However, the DOJ does not agree that the balance of the law outside of the individual mandate and the inseverable guaranteed issue and community rating provisions should remain in tact.
The court filing argues that the request for a temporary injunction to declare the individual mandate unconstitutional should not be allowed because the individual mandate’s penalty for non-coverage is in effect through 2018, therefore it remains constitutional.
“That said, because this is a pure question of law on which the Plaintiffs and Defendants do not disagree, the Court should consider construing Plaintiff’s motion as a request for summary judgment and then entering a declaratory judgment that the ACA’s provisions establishing the individual mandate as well as the guaranteed-issue and community-rating requirements will all be invalid as of January 1, 2019. That would be adequate relief against the government.”
Former CMS Administrator Andy Slavitt in a