WASHINGTON — A longtime career Justice Department official who resigned in protest over the Trump administration’s decision to no longer defend the constitutionality of the Affordable Care Act is returning to the department.
Joel McElvain had spent more than two decades at the DOJ when he left in June 2018, shortly after the department filed a brief arguing to strike down the individual mandate, a core part of the law that requires most people to have health insurance. He confirmed via email this week that he’s going back to his former office, the Federal Programs Branch, as a senior trial counsel starting Oct. 12.
McElvain didn’t publicly announce that the change in the government’s position in the ACA fight was his reason for leaving at the time, but he was one of three attorneys who withdrew from the case hours before the brief was filed; the Washington Post connected his departure to the department’s change in position.
McElvain later confirmed that he’d resigned in protest in a July 2020 letter to the House Judiciary Committee, which was investigating the Trump administration’s decision to stop defending the healthcare law against a challenge brought by Texas and other Republican state attorneys general. The US Supreme Court tossed out that case last summer, once again preserving the ACA.
“The Department has long understood that, except in rare circumstances, it has a duty to defend the constitutionality of federal statutes where a reasonable argument is available for that defense. I believed that the Attorney General’s decision was inconsistent with this duty, and I did not believe that I could continue in good conscience to serve as an attorney in the Department under those circumstances,” McElvain wrote to the committee.
The Trump administration’s decision to switch sides in the fight over the ACA was one of a string of incidents and controversies that resulted in career employees leaving cases or getting replaced, resigning, or publicly protesting decisions made by political appointees. When Attorney General Merrick Garland testified at his confirmation hearing in February, he pledged to “reaffirm” department norms and “respect the professionalism of DOJ’s career employees.”
McElvain joined the department as a trial attorney in 1997. From 2015 until he left in 2018, he’d served as the assistant director of the Federal Programs Branch — the arm of the Civil Division that defends against challenges to executive branch actions and federal laws — and played a major role in the Obama administration’s defense of the Affordable Care Act; he received the Attorney General’s Award for Exceptional Service in 2013 for that work.
McElvain is returning to the Federal Programs Branch as an attorney, as opposed to another senior leadership post, since that’s where the office had immediate vacancies, according to a source familiar with his move. Another person familiar with the hire told BuzzFeed News that career employees were “excited and enthusiastic” about his return.
In his letter to the House Judiciary Committee last year, McElvain criticized how former attorneys general Jeff Sessions and Bill Barr had handled the ACA case, from Sessions’ initial move to switch positions in 2018 to Barr’s decision in 2019 to have the department argue that the entire law should be invalidated.
“I did not decide lightly to leave my employment with the Department of Justice. I considered it to be a great privilege to serve the public as a career attorney with the Department. My former colleagues who are civil servants have committed themselves to the Department’s mission to defend the interests of the United States according to law, and to ensure the fair and impartial administration of justice for all Americans,” McElvain wrote. “It is regrettable that Attorney General Sessions and Attorney General Barr have not displayed the same commitment to these values.”
McElvain joined the private law firm King & Spalding in January 2019. His law partners there have included another notable former DOJ official who left government service after a high-profile break with the Trump administration — Sally Yates, the former acting attorney general who was fired for refusing to defend Trump’s original travel ban executive action in January 2017.