Last week, the Department of Justice filed a legal brief announcing that it will not defend the Affordable Care Act in court. That legal maneuver amounts to a transparent attempt by the Trump administration to try to repeal Obamacare yet again.
Conservatives have spent nearly a decade sniping at Obamacare through targeted litigation. The ink was barely dry on Barack Obama’s signature on the law before fourteen Republican attorneys general sued to invalidate it. Eventually, a lawsuit brought by a Koch brothers-funded business lobby made its way to the Supreme Court, claiming that the law’s requirement that everyone purchase insurance was unconstitutional.
In that case, Chief Justice John Roberts cast the deciding vote to save Obamacare’s individual mandate. He thought the mandate went beyond the limits of Congress’s authority to regulate interstate commerce, but was valid as a tax.
Fast forward to 2017. Congressional Republicans spent the better part of a year trying and failing to repeal Obamacare. When they gave up and passed a standalone tax cut on the rich instead, Republicans slipped in a repeal of the individual mandate in order to nick Obamacare.
But they didn’t technically strike the individual mandate from the books. Instead, Republicans simply zeroed out the mandate’s tax penalty. So as of January 1, 2019, the individual mandate is “enforced” with a $0 penalty for skipping out on health insurance.
A new Obamacare lawsuit brought by Texas and other red states takes yet another swing at the law. And now the Trump administration’s Department of Justice has weighed in to argue that the individual mandate has become unconstitutional. The argument is that because the individual mandate no longer generates any revenue in the wake of the tax bill, it can no longer be considered a tax. And if it’s not a tax, then it has no constitutional authority.
But the administration doesn’t stop there. Even worse, it argues that if the individual mandate falls, then Obamacare’s rules prohibiting discrimination against people with preexisting conditions must fall, too. These protections that guarantee insurance access and fair prices should be struck down with the ghost of the individual mandate, according to the administration.
As a legal matter, this argument is utterly frivolous. It’s a perversion of a legal doctrine known as “severability.” When a court strikes down one provision of a law, it generally tries to leave alone other “severable” parts of a law in order to preserve as much of Congress’s work as possible.
Turning that doctrine on its head, the administration argues that Obamacare’s protections for people with preexisting conditions are not severable from the individual mandate, pointing to congressional findings in the Affordable Care Act that the provisions were closely connected. But the health care program known as “Obamacare” is no longer derived just from the Affordable Care Act. Rather, it comes from the Affordable Care Act as amended by the Donor Relief Act of 2017. Congress itself—however unwisely—opted to defang the individual mandate and leave the rest of Obamacare alone. The courts have no severability judgment to make, because Congress already made it.
And there’s a reason Congress didn’t touch the rest of Obamacare: it didn’t have the votes. Senate Republicans pursued Obamacare repeal solely through budget reconciliation because they didn’t have enough votes to defeat a Democratic filibuster. Reconciliation is limited solely to legislation that has an impact on the budget. That constraint precluded Republicans from even considering repealing Obamacare’s provisions guaranteeing people with illnesses the right to purchase insurance.
So the administration is trying to do through the courts would it could not get through Congress. It’s a backdoor attempt to saw off more of Obamacare than Congress could ever bear.
Of course, the Department of Justice’s refusal to defend Obamacare is also a stunning betrayal of the rule of law. “[T]he Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense,” law professor Nicholas Bagley writes. “This brief puts that commitment to the torch.”
Bagley also notes that just hours before the Department of Justice submitted its brief, three career attorneys at the Department withdrew from the case. That’s typically a sign of dissension among the legal professionals within the Department not wanting their names attached to a frivolous brief. That left only Trump political appointees signing the brief—including Acting Assistant Attorney General Chad Readler, who Trump just picked to serve as a federal appellate judge.
Trump and his congressional Republican abettors have been hell-bent on soiling Barack Obama’s program expanding health care to twenty million people. Through acts of sabotage both big and small, they’ve tried their damnedest to make the law function more poorly, even going so far as to deliberately cultivate massive premium hikes on people’s health insurance plans this year.
The galling brief filed by the administration’s hand-picked lawyers is a reminder that the conservative bloodlust to take away people’s health care has in no way dissipated after last year’s legislative failure of Obamacare repeal. American health care simply will not be safe until Republicans are stripped from power in Washington.