Ripples of shock flowed through the legal community after news broke late yesterday that the U.S. Department of Justice will no longer defend the Affordable Care Act in an ongoing appeal over its constitutionality.
The government filed a Monday night letter with the U.S. Court of Appeals for the Fifth Circuit that said the court should affirm a district judge’s ruling that Obamacare is unconstitutional, reported the National Law Journal. The law has remained effective through the appeal of a December 2018 ruling by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas that said the entire health care law was unconstitutional ever since Congress passed a law in 2017 that zeroed out the ACA’s penalty for uninsured people. Other parties have intervened in the appeal to defend the law, and they'll keep defending it even though the federal government will not.
South Texas College of Law Houston Professor Josh Blackman, the author of two books about the constitutionality of the ACA, said he agrees that the individual mandate is unconstitutional, but U.S. Attorney General Bill Barr’s decision to agree to toss out the entire ACA is indefensible. He said there are possible constitutional arguments to keep certain protections for pre-existing conditions, and the government certainly could find arguments for other provisions in the law, too.
“The argument to save the law will be made by various parties. I don’t think the court will be ill-served,” he said.
Politico reported that previously, then-A.G. Jeff Sessions' position not to defend the individual mandate and pre-existing condition protections had prompted three lawyers to remove their names from the government’s brief and senior attorney Joel McElvain to resign. Now, Barr is taking an even more aggressive stance.
House Democrats, who are among the intervenors still defending the law, denounced the justice department’s decision as unconscionable, the Politico article said.
"Millions of Americans will lose their health care immediately if this decision is upheld," Rep. Frank Pallone (D-NJ), chairman of the House Energy and Commerce Committee, said in a statement, according to Politico. "We will do everything we can to defeat this attempt to rip away Americans’ health care."
A spokeswoman for the Texas Office of the Attorney General, which is leading a coalition of states that challenged the law in the case, Texas v. United States, emailed a statement about the news.
“We have always been confident that the district court’s extremely well-reasoned opinion was correct on the law, just as we have also always been confident that this Administration takes its obligation to uphold the Constitution seriously. We applaud the Department of Justice’s faithful execution of that duty," said the statement by spokesman Marc Rylander.
It’s rare for the Department of Justice to refuse to defend federal statutes, however, this move comes two months after Barr said during his confirmation hearings that he might reconsider the government’s position.
Under Sessions, the government argued that only parts of Obamacare were unconstitutional —namely, the individual mandate for people to buy insurance or face a penalty, and protections for pre-existing conditions. If the Fifth Circuit did decide to affirm O'Connor's ruling, as the government now urges, that would invalidate many more provisions dealing with Medicaid payments, nutrition labeling, breaks for breastfeeding mothers to express milk, and calorie counts on restaurant menus.
“That’s a total bombshell, which could have dire consequences for millions of people,” a New York Times article quoted Yale Law School Professor Abbe Gluck as saying. Gluck, who has followed the litigation, explained that the government’s position would invalidate hundreds of reforms.
A MedCityNews article noted that University of Michigan Law professor Nicholas Bagley agreed, writing in a blog post, “The Trump administration has now committed itself to a legal position that would inflict untold damage on the American public.”