The Trump administration announced on Monday that they will not defend the Affordable Care Act after a federal court ruled last December that the entire law is unconstitutional. If the court’s decision holds, the 20 million people who were able to get insurance because of the law – mostly folks with pre-existing conditions, or living at the edge of poverty – will lose it.
But there’s little chance of that actually happening. The court’s decision is flawed, conservatives are appalled by it, and California and other states are already pursuing the appeal.
The government’s decision not to appeal is hardly unique though – the Obama administration declined to defend the Defense of Marriage Act, for example – and if anything, the controversy over the case will likely help the Democrats.
The case itself – titled both Texas v. Azar (Alex Azar is Secretary of Health and Human Services) and Texas v. United States – is the latest salvo from Texas’s activist attorney general, Ken Paxton. As the Wall Street Journal lamented, Paxton more closely resembles a liberal social justice warrior who “use[s] the courts to achieve policy goals that need to be won in Congress.”
Here, Paxton argued that the entire ACA is unconstitutional because in the 2017 tax cut bill, Congress zeroed-out the penalties for not obtaining health insurance. Last December, U.S. District Court Judge Reed O’Connor agreed, in a 55-page decision. This week, the Department of Justice issued a two-sentence letter stating that it agrees with that decision and will no longer defend the ACA in court.
The court’s decision is logical, to an extent. In the 2014 case NFIB v. Sebelius, the Supreme Court allowed the ACA to stand because the “individual mandate” was, in effect, a tax. If you failed to buy insurance, you had to pay a fee instead. Therefore, Obamacare is a tax, and constitutional.
But in 2017, Congress set the fee to $0. If Obamacare is a big pile of Jenga bricks, the fee provision is the foundation. Pull it out, and the whole structure falls.
Only, that’s not how statutory interpretation works.
First, it’s clear that Congress did not intend to repeal the entire ACA. In fact, it spectacularly failed to do so, handing President Trump one of the biggest defeats of his term. Thus, judicial canons of interpretation hold that the fee provision should, if at all possible, be considered severable from the rest of the ACA, rather than a back door to repeal the entire law. There are plenty of ways to do that, but instead, Judge O’Connor’s blanket decision flatly defies the will of Congress.
Second, millions of people depend on the ACA. Their lives are literally at stake. Even Republicans ardently opposed to the law have, at least in theory, promised to “repeal and replace” Obamacare – not simply tear it into pieces. It’s not even clear how that would work. Prudentially as well as jurisprudentially, the district court’s opinion is a disaster.
But does this week’s decision by the Trump administration means that it’s going to hold?
In a word: No.
All the DOJ’s decision means is that the federal government won’t be defending the law in this case. But California and other states are already doing so. They are formally listed as “Intervenors-Defendants” in the case and have already been defending the ACA more ardently than the Department of Justice.
In terms of how this case proceeds, the DOJ’s letter is completely meaningless. California – represented by its own activist attorney general, Xavier Becerra – will lead the appeal to the Fifth Circuit Court of Appeals, and, if necessary, to the Supreme Court.
It’s hard to predict which way the right-leaning Fifth Circuit will rule. Conservatives hate Obamacare as a constitutional as well as political matter, but they also dislike activist judges defying Congress and the rules of statutory interpretation. Either way, however, California and its coalition will continue the fight without so much as a hiccup.
Nor is the DOJ’s decision really that shocking as a legal matter. Since at least 1860, presidents have declined to enforce or defend laws they believed to be unconstitutional. Most recently, to the great chagrin of Republicans, the Obama administration declined to enforce certain immigration laws (DACA, which protected people brought to the country illegally when they were children, was an administrative, not legislative, creation) as well as a host of other legal provisions with which it disagreed.
Most famously, President Obama ordered his Department of Justice in 2011 to stop defending the Defense of Marriage Act, believing it to be discriminatory and unconstitutional. At the time, of course, Republicans howled, just as Democrats are howling now. But defending DOMA was inconsistent with positions the Obama administration was taking in other gay rights cases; in order to defend it, they’d have to contradict what they were saying elsewhere.
Likewise here. Trump’s DOJ had already declared the individual mandate unconstitutional, and after Judge O’Connor’s decision in December, Trump tweeted “As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL.”
That tweet’s not quite the same as a reasoned legal memorandum, but it’s hardly the only case of Trump making policy on his smartphone, and it would be contradictory for his own Department of Justice to argue the opposite.
For the Department of Justice, Obamacare in 2019 is the same as DOMA in 2011.
Politically, however, the decision is indeed surprising, since it would seem to benefit Democrats more than Republicans.
For two years, Trump has simultaneously campaigned to protect insurance for those with pre-existing conditions – between 50 and 129 million Americans – and proposed no way to do so. And while running on the truth is a difficult proposition these days, Democrats had some success pointing this out in 2018, and might succeed even more in 2020, now that the Trump administration has formally taken the position that the ACA should collapse even with no replacement available.
It’s one thing to say “we’ve got a better plan,” even if no plan is ever put forward. It’s quite another to say “screw it, you’re all on your own.”
After all, Americans now like Obamacare. And much as the individual mandate irks conservatives, it’s economically impossible to force for-profit insurance companies to cover people regardless of pre-existing conditions unless healthy people, too, participate in the insurance market.
Indeed, public opinion is moving to the left on health care; about 70 percent of Americans say they support, though presumably that number will go down if they read the fine print. In the end, Republicans may be stuck with Obamacare, because, to them, the alternative is even worse.
In the end, the Trump administration’s choice not to defend the ACA will make no difference in the courtroom. But the ballot box is another matter