The Post reports on the Trump administration’s decision not to defend the Affordable Care Act’s constitutionality, in an uncommon but not unprecedented break with “the executive branch’s tradition of arguing to uphold existing statutes”:
In a brief filed in a Texas federal court and an accompanying letter to the House and Senate leaders of both parties, the Justice Department agrees in large part with the 20 Republican-led states that brought the suit. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law will not be valid, either.
In other words, even the protection against preexisting conditions has to go.
More specifically, the GOP-led states argue that because the recent GOP tax bill eliminated the individual mandate requiring purchase of insurance — which in 2012 the Supreme Court ruled constitutional under the government’s taxing power — the entire law is now unconstitutional. That’s more than a little cockeyed since in the same 2012 ruling, the court specifically held that while the Medicaid provision had to be modified, that did not render the entire law unconstitutional.
The Justice Department’s brief is so illogical and evidences such bad faith that three DOJ lawyers seem to have quit the case rather than sign the brief. (“In an unusual filing just before 6 p.m. Thursday, when the brief was due, the three career Justice attorneys involved in the case — Joel McElvain, Eric Beckenhauer and Rebecca Kopplin — withdrew.”) All lawyers, but most especially government attorneys, have an ethical obligation not to file motions or cases in bad faith that are legally and/or factually unsupportable.
Georgetown Law professor Marty Lederman explains how unusual such a recusal is. “For three such respected DOJ attorneys to do so simultaneously—just hours before a major filing, and without replacement by any other career lawyers other than a rookie—is simply flabbergasting. It did not portend well for the brief that was to follow.” He continues, “The bar for a DOJ lawyer to withdraw from a case because of the implausibility or weakness of a government argument in support of a federal program is understandably set very high. DOJ’s brief yesterday in Texas v. United States cleared that hurdle with room to spare.”
Now, it is not the case that the government must always defend the laws on the books. The Obama administration did not defend the Defense of Marriage Act. None other than now-Chief Justice John G. Roberts Jr. declined to defend an affirmative-action law when he was acting solicitor general. The problem arises when you look at the substance of the argument, which prompted the extraordinary step of three attorneys refusing to sign off on the brief. Lederman explains why: “Obviously the 2017 Republican Congress did not intend to diminish individuals’ choices and to require them to maintain health insurance beginning in 2019 whereas they previously did not have to do so. (Indeed, I’d be willing to wager than no members of Congress who voted for the bill would favor such a result.)”
Put differently, it is bizarre to argue that removing the mandate, which was the heart of critics’ complaint about the ACA, renders it unconstitutional. (“Contrary to the implausible argument in the Justice Department brief,” Lederman writes, “the amended version of Section 5000A does not and will not require anyone to maintain health insurance. Therefore it is not unconstitutional — instead it is, at most, toothless.”)
Moreover, the government’s argument on severability (i.e., take away the individual mandate and the entire law vanishes) is entirely illogical. In arguing that Congress would not have wanted the law to remain without the individual mandate, the government ignores that this is precisely what Congress did in 2017 — just as the Supreme Court did when preserving the law even though the Medicaid provision could not be upheld. Libertarian legal scholar Ilya Somin has pointed out that while courts have restrictions on severability, no one seriously doubts that Congress can do so. “Congress has already effectively neutered the individual mandate, while leaving the rest of the ACA in place. It was Congress that removed the monetary penalty imposed on violators of the individual mandate, thus rendering it ineffective. And it was also Congress which chose to leave the rest of the law in place,” he wrote. He explained that “a court could not conclude that Congress’ design for the ACA would be fatally undermined without an effective individual mandate. … Congress itself has concluded that a mandate-less ACA is acceptable (or at least a lesser evil than the available alternatives).”
In any event, the Justice Department’s stunt won’t work. Former acting administrator of the Centers for Medicare and Medicaid Services Andy Slavitt points out that blue states can and will still defend the ACA. The government and the GOP-led states’ argument is so weak, it will in all likelihood fail. In the meantime, however, the administration is once more whacking health-care insurance purchasers. “If insurers are going to invest in a system they think may not exist,” he says, “they will need to likely charge more.”
Finally, the administration’s legal maneuvering is terrible politics. Democrats, seeing that health care is the No. 1 issue for most voters, will use this as further ammunition in their argument that Trump is out to take away your health care. In this instance, they happen to be right.