The Justice Department on Thursday evening argued that the core of the Affordable Care Act should be struck down as unconstitutional — an unusual move that prompted an immediate outcry from progressive legal scholars.
The brief argues that the individual mandate — which had previously been upheld as valid under Congress’ taxing power — is no longer constitutional because Congress repealed the tax when it ended the individual mandate’s penalty in the tax bill last year. With no tax, the brief argues, there is no longer any justification to uphold the individual mandate as constitutionally valid.
That might seem unimportant on its own: Does it matter if the individual mandate is “valid” if there’s no penalty for not carrying health insurance?
The Justice Department’s brief goes further than that, though. It also argues that the other key provisions — guaranteed coverage for preexisting conditions and community-rating provisions — are not “severable” from the individual mandate and must also be struck down. Those provisions make it so that insurers have to offer insurance to all, regardless of preexisting conditions, and cannot charge people more based on their medical history.
That’s the part that is dramatic.
By arguing that those provisions are not severable from the individual mandate, the Justice Department is arguing that the entirety of that core of the law — outside of Medicaid expansion, which would remain unaffected — should be struck down by the court.
This, legal scholars on the left shot back hours later, flies in the face of the fact that Congress chose not to touch those provisions in the very piece of legislation that ended the penalty for failure to carry insurance.
Those on the right defending the administration’s move focused on the Obama administration’s decision in 2011 to stop defending the Defense of Marriage Act in court, pointing to that move as precedent for Thursday’s action.
There is precedent for the Justice Department's refusal to defend laws on the books — precedent that pre-dates the DOMA decision — but those instances have been limited to scenarios where separation-of-powers questions have been at issue or, as lawyers who supported the DOMA move put it at the time, “no reasonable argument supports the statute’s constitutionality.” (President Reagan’s first attorney general, William French Smith, acknowledged this as well, writing in 1981, “The Department appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”)
The opponents of the Obama administration’s decision say that it is impossible for there to have been “no reasonable arguments” in support of DOMA — given that the administration had been defending DOMA in other cases. Supporters counter that there was a shifting legal landscape — courts had ruled DOMA unconstitutional and there was a growing understanding that sexual orientation discrimination violates equal protection guarantees.
Regardless of that dispute, Thursday’s brief — and the Justice Department’s new position — is not based on some significant separation-of-powers issue or a compelling constitutional debate; the primary issue — as some scholars on the left and right agree — is the unexpected view of the severability argument.
In a further unusual move, the Justice Department argues that the court should not stop enforcement of the law immediately, since the elimination of the penalty does not go into effect until 2019. The department instead asks for an order declaring that “the ACA’s provisions establishing the individual mandate as well as the guaranteed-issue and community-rating requirements will all be invalid as of January 1, 2019.”
Adding yet more intrigue to the day’s filing was that fact that hours before the brief was filed, three Justice Department lawyers — Joel McElvain, Eric Beckenhauer, and Rebecca Kopplin — withdrew from the case.
Earlier in the day Thursday, Daniel Mauler, another DOJ lawyer, made his first appearance in the case.
Mauler later signed the brief.
A Justice Department official told BuzzFeed News that a decision was made within the department — the official declined to specify who made the decision and when — to change lawyers on the case because the department was taking a new legal position.
Two of the lawyers who withdrew from the case, McElvain and Beckenhauer, previously were involved in litigation defending the Affordable Care Act in court.
McElvain is the assistant branch chief of the Civil Division’s Federal Programs Branch, which defends agencies in court. Beckenhauer is a senior counsel in the there. Kopplin joined the Justice Department in September 2017, according to her LinkedIn profile.
In addition to Mauler, a non-political appointee, the other lawyers who ended up on the brief were Chad Readler, the acting head of the Civil Division; Brett Shumate, the deputy assistant attorney general for the Federal Programs Branch; and Brenna Jenny, counsel to Readler. All four joined the department after President Trump took office.
Earlier in the day Thursday, Trump announced his intent to nominate Readler to a judgeship on the US Court of Appeals for the 6th Circuit.