GOP sabotage of ‘Obamacare’ now in the courts

The Trump administration in a brief filed Thursday night says that it will not defend the Affordable Care Act against the latest legal challenge to its constitutionality — a dramatic break from the executive branch’s tradition of arguing to uphold existing statutes and a land mine for health insurance changes the ACA brought about. Trump administration won’t defend ACA in case brought by GOP states:

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requiring most Americans to carry health insurance soon will no longer be constitutional — because The GOP Tax Bill Repealed Obamacare’s Individual Mandate — and that, as a result, consumer insurance protections under the law (e.g. preexisting conditions) will not be valid, either.

The three-page letter from Attorney General Jeff Sessions begins by saying that Justice adopted its position “with the approval of the President of the United States.” The letter acknowledges that the decision not to defend an existing law deviates from history but contends that it is not unprecedented.

The bold swipe at the ACA, a Republican whipping post since its 2010 passage, does not immediately affect any of its provisions. But it puts the law on far more wobbly legal footing in the case, which is being heard by a GOP-appointed judge [in what was a shameless case of forum shopping] who has in other recent cases ruled against more minor aspects.

The administration does not go as far as the Texas attorney general and his counterparts. In their suit, lodged in February in the U.S. District Court for the Northern District of Texas, they argue that the entire law is now invalid.

By contrast, the Justice brief and letter say many other aspects of the law can survive because they can be considered legally distinct from the insurance mandate — they are severable — and such consumer protections as a ban on charging more or refusing coverage to people with preexisting medical conditions.

A group of 17 Democratic-led states that have won standing in the case also filed a brief on Thursday night arguing for the ACA’s preservation.

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.

This is an indication that they strongly disagreed with their superiors’ decision to abandon the department’s defense of the ACA.

The department’s argument, if adopted by U.S. District Judge Reed O’Connor, “would be breathtaking in its effect,’ said Timothy Jost, a retired Washington and Lee law professor who follows such litigation closely. “Of all of the actions the Trump administration has taken to undermine individual insurance markets, this may be the most destabilizing. . . . [If] I’m an insurer, I don’t know what I am supposed to do or not.”

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And Topher Spiro, vice president of health policy at the liberal Center for American Progress, said the administration’s legal argument contradicts promises by Trump that he would not tamper with the ACA’s protections for people with preexisting medical conditions.

The GOP-controlled Congress failed to “repeal and replace” Obamacare last year, but they did put a poison pill in the massive tax bill Congress passed late last year. They eliminated the tax penalty the ACA requires people to pay if they flout the insurance mandate. The enforcement of that requirement will end in January.

As a result, the Texas lawsuit contends, “the country is left with an individual mandate to buy health insurance that lacks any constitutional basis. . . . Once the heart of the ACA — the individual mandate — is declared unconstitutional, the remainder of the ACA must also fall.” [Congress effectively repealed the individual mandate, while leaving the rest of the ACA in place.]

Texas and the accompanying states have asked for a preliminary injunction that could suspend the entire law while the case plays out in court.

But the administration disagrees with that position. Instead, Justice officials argue in their brief that the ACA’s insurance requirement will not become unconstitutional until January, so that “the injury imposed by the individual mandate is not sufficiently imminent” and that the judge could issue a final ruling in the case before then.

University of Michigan law professor Nicholas Bagley analyzes at The Incidental Economist:

In an unexpected move, the Justice Department filed a brief this evening urging a Texas court to invalidate the Affordable Care Act’s crucial insurance reforms—including the prohibition on refusing to cover people with preexisting conditions. Although the ACA is not in immediate peril, the brief represents an enormous blow to the integrity of the Justice Department. It also displays enormous contempt for the rule of law.

For those of you just coming to the case, this is from my earlier recap:

In their complaint, the states [including Texas and other red states] point out (rightly) that the Supreme Court upheld the ACA in NFIB v. Sebelius only because the individual mandate was a tax and (rightly) that Congress has now repealed the penalty for going without insurance. As the states see it, the freestanding requirement to get insurance, which is still on the books, is therefore unconstitutional. Because it’s unconstitutional, the courts must invalidate the entire ACA—lock, stock, and barrel.

If that argument about the “inseverability” of the amended mandated from the rest of the ACA sounds inane, that’s because it is. When Congress first adopted the individual mandate in 2010, it was an essential part of a broader scheme. But Congress is always free to amend its statutes, even to omit what it previously thought was essential. That’s what Congress did when it zeroed out the mandate.

So we don’t have to speculate what Congress would’ve done if it had a choice between invalidating the ACA’s insurance reforms or just invalidating the mandate. Congress made that choice. For a court to now reject it in the service of an absurd argument about severability would be the rankest kind of judicial activism.

Without question, then, there’s an argument to be made in the ACA’s defense. And the Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense. This brief puts that commitment to the torch.

I am at a loss for words to explain how big of a deal this is.

The laws that Congress passes and the Presidents signs are the laws of the land. They aren’t negotiable; they’re not up for further debate. If the Justice Department can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books. That’s as flagrant a violation of the President’s constitutional duty to take care that the laws are faithfully executed as you can imagine.

It’s part of the president’s duties under Article II of the Constitution that “he shall take care that the laws be faithfully executed.” See, the Nixon Articles of Impeachment which expressly contain the foundational language “and in violation of his constitutional duty to take care that the laws be faithfully executed.”

But don’t take my word for it. For Justice Department lawyers—I count myself among them (2007-10)—the duty to defend congressional statutes is at the core of what it means to be a government attorney. Yet, hours before the federal government filed its brief,three line attorneys from the Justice Department withdrew from the case. That’s almost unheard of. These are lawyers who have made arguments they personally disagreed with countless times. They’re civil servants. They’re good soldiers. Yet they could not sign it. That’s how far out the administration’s position is.

Do you want to live in a country where the Justice Department can embrace the craziest of arguments and decline to defend laws—or even enforce them!— on that basis? The President has a duty to take care that all the laws are executed, not just the ones he likes. And while there are cases in which the Justice Department has deviated from that principle, they are extremely rare.

Indeed, is there any precedent for this? Odds are we’re going to hear a lot in the coming days about the Obama administration’s decision not to defend the Defense of Marriage Act. There, however, we had a question about the meaning of the Constitution that struck deep on questions about fundamental values. Just as we no longer believe it’s constitutional to offer federal mortgage insurance only in white neighborhoods, the Justice Department concluded that we, as a country, had come around to the view that it was no longer constitutionally tenable to deny equal rights to gay people.

Whether you agree or disagree with the Justice Department’s decision—and it made lots of line attorneys nervous—it was moored to the public’s evolving sense about what the Constitution meant. By 2011, a justification that once seemed unobjectionable had come to seem untenable.

This case could not be more different from DOMA. The question is not whether a penalty-free mandate is unconstitutional—who cares, honestly? The critical question, instead, is a technical one about severability. No one thinks that implicates a clash of fundamental constitutional values. No one thinks that severability strikes at the heart of who we are as a people and a country. What’s more, the severability question isn’t even remotely hard. If a cockamamie argument like this is a sufficient basis to decline to defend a statute, what isn’t?

I for one am concerned. No, I’m frightened. Not so much about the ACA: I still regard it as extremely unlikely that the Supreme Court will adopt an argument as far-fetched as the one that the states have advanced. And, so far as I can make out, the Trump administration will continue to enforce the ACA while the litigation progresses.

No, I’m frightened for what this says about the rule of law. I don’t like being an alarmist about the rule of law—there’s a risk I’ll come off as unhinged and naïve. But I’m serious. The Trump administration has just announced that it doesn’t care that a law was passed by Congress and signed into law by the President. All that matters if that it hates the law and has a (laughable) argument for casting it aside.

That’s not a rule of law I recognize. That’s a rule by whim. And it scares me.

This comes from the president who recently declared that he cannot be held accountable under the law because, in essence, “I am the state,” just as Louis XIV of France declared. The authoritarianism of Donald Trump is tyranny.

Jonathan Cohn adds at The Huffington Post:

The other significance of Thursday’s action is not legal. It’s political.

The Trump administration’s contempt for Obamacare is no secret. And although the president and his supporters have sometimes said they believe in protections for people with pre-existing conditions, they have repeatedly taken action ― like trying to pass repeal legislation or rolling back the Affordable Care Act’s regulations on what plans must cover ― that seek to undermine or obliterate those protections entirely.

Those GOP efforts sparked a tremendous backlash. But the effort to get a repeal bill through Congress ended in the fall. It’s possible that those memories have faded from public consciousness a bit, and that may even help explain Trump’s gradually, if modestly, improving approval numbers in the polls.

The decision to jump into this health care case, on the side of the plaintiffs out to gut protections for people with pre-existing conditions, could put the issue back in the public eye. That could work well for Democrats, who have made clear they believe health care is a winning political issue for them again.

“After years of Republicans trying to repeal the protections stopping insurance companies from denying coverage to people with pre-existing conditions, now Trump says the protections are unconstitutional. Republicans always had to defend those votes in this election, but now they have to defend his decree too,” said Jesse Ferguson, a Democratic strategist who works with health care advocacy groups.

Spokespersons for the Democrats’ House and Senate campaign committees made clear that Republicans will have to defend this decision and that the GOP “will face serious blowback in the midterms.”

The move could be particularly important in two key Senate races. The original brief in the lawsuit included, as co-counsel, a pair of state attorneys general: Josh Hawley of Missouri and Patrick Morrisey of West Virginia.

Hawley is challenging Democratic Sen. Claire McCaskill, while Morrisey is challenging Democratic Sen. Joe Manchin. Missouri and West Virginia are relatively conservative states, difficult for Democrats to hold, and McCaskill, in particular, is thought to be vulnerable.

But polls have shown protections for pre-existing conditions to be exceedingly popular, even among Republican voters. A chance to show voters that Hawley and Morrisey would get rid of those protections could help keep those two seats in Democratic hands.

UPDATE: 52 million Americans under the age of 65 could find their access to health insurance at risk because of a wide range of preexisting conditions, according to a 2016 analysis by the Kaiser Family Foundation. ACA lawsuit could jeopardize 52 million Americans’ access to health care.