The Trump administration said Thursday that it will not defend portions of the Affordable Care Act (ACA) in a challenge by 20 states.

The administration filed a response [memorandum, PDF] Thursday to the complaint along with a letter [text] from Attorney General Jeff Sessions [profile] agreeing with the plaintiffs and calling for a declaratory judgment by the court to rule that the individual mandate unconstitutional.

The 20 states filed [JURIST report] their lawsuit in February, relying on the Supreme Court precedent in NFIB v. Sebelius [JURIST report]. The court ruled that the individual mandate was unconstitutional under Congress’s Commerce Clause power as Congress cannot compel individuals to participate in an area of commerce. The court upheld the ACA individual mandate under Congress’s tax power as the tax penalty for failing to have the minimum health insurance coverage required was within Congress’ authority. However, following the passage of the Tax Cut and Jobs Act of 2017 (TCJA) [text, PDF], the tax penalty would not be imposed as of 2019.

The states argued that without the tax penalty that the Supreme Court used as a basis for upholding the legislation, the individual mandate is unconstitutional and is not severable from the Act in its entirety. The Trump administration agrees with assessment of the individual mandate also mentioning that the guaranteed issuance of coverage and community rating provisions are tied to the individual mandate and are not severable requiring those provisions to be voided, but the rest of the ACA is severable. However, the Trump administration contends the individual mandate only becomes unconstitutional as of 2019, calling for a declaratory judgment from the court on the constitutionality but a denial of a preliminary injunction for the plaintiffs.

Before the Trump administration’ss response on Thursday, Democratic Attorneys General filed [JURIST Report] a motion to intervene [text, PDF] in April to defend the ACA anticipating the Trump administration’s intention to not uphold the legislation.

Sessions commented in his letter:

This question of statutory interpretation does not involve the ACA’s constitutionality and therefore does not implicate the Department’s general practice of defending the constitutionality of federal law. Outside of these two provisions [the guaranteed issue and community rating] of the ACA, the Department will continue to argue that Section S000A(a) is severable from the remaining provisions of the ACA.

House Minority Leader Nancy Pelosi [official profile], criticized the Trump administration’s response in a statement [text], commenting, “Tonight, the Trump Administration took its cynical sabotage campaign of Americans’ health care to a stunning new low.”