As part of the president’s duty to look out for the faithful execution of the laws, the federal government is charged with defending duly enacted statutes as they exist on the books — no matter the Congress that passed them or the chief executive who signed them. That means that whenever someone challenges a statutory scheme in court and calls for its invalidation, the executive branch generally rises to its defense — even if, as a matter of policy, the president is not a big fan of the law. Under enduring Department of Justice guidelines, “any reasonable argument” that would support upholding the law will do. Only in rare, principled circumstances may our law enforcers decline to defend and enforce the law.
This sensible, nonpartisan tradition of respect for the rule of law is out the window with the Trump administration. At the direction of Jeff Sessions, the Justice Department has thrown up its hands and admitted defeat in a frivolous and highly partisan lawsuit a group of states, led by Texas, filed to challenge the constitutionality of the Affordable Care Act. Yes, we’re still at it, and you remember correctly: Except for the Medicaid expansion, the Supreme Court already upheld the totality of the law as constitutional — under a theory that requiring people to purchase health insurance, and imposing a penalty for noncompliance, is a valid exercise of Congress’s taxing power.
But following dozens of failed attempts to repeal Obamacare, this Republican Congress bent the rules and managed to squeeze in a repeal of the so-called individual mandate in the tax-reform bill that lawmakers approved last fall. Obamacare, its regulations, and accompanying structural reforms didn’t go anywhere — they remain the law of the land and very much in place. The only thing congressional Republicans did away with was the penalty for failing to buy health insurance. As a result of this decrease in tax revenue, fewer people would be compelled to sign up for health care, insurance premiums would rise, and millions would likely lose coverage. But those policy consequences do not an unconstitutional law make. The Trump administration still had (and has) an obligation to enforce the rest of the law.
And yet in a sleight of hand that’s only possible in the Trump era, Texas led a coalition of states to sue a friendly president and his administration — hoping they’d fall in line and for its specious argument that, with no tax penalty to speak of any longer, the rest of the health-care law should fail and be invalidated. Because the individual mandate is “inseverable” from the rest of the law, Texas’s argument goes, repeal of the mandate means repeal of everything else. But Congress already specifically found the tax penalty is severable — that is, Republicans eliminated it when they passed tax reform because they determined it was an irredeemable flaw in Obamacare. Congress voted to allow the rest of the law to stand.
No matter. Lo and behold, Sessions did exactly as he was requested to do by Texas. “I have determined that the plaintiffs in Texas v. United States are correct that Section 5000A(a) will be unconstitutional when the Jobs Act’s amendment becomes effective in 2019,” Sessions told congressional leaders on Thursday in a letter he’s required by law to send whenever the Justice Department determines it will not defend a statute in court. The section Sessions is talking about, of course, is the individual mandate. But the penalty associated with the mandate has already been scrapped by lawmakers with the new tax law. What Sessions is really telling Congress in the rest of his letter — and in a brief filed in the Texas case — is that the individual mandate cannot be divorced from other key reforms in the health-care statute, like the prohibition on denying insurance coverage to patients with preexisting conditions. So if the mandate falls, the rest of the law should fall with it.
Don’t miss what’s going on here: The Justice Department is, in essence, urging a federal judge to side with Texas and invalidate marquee portions of the Affordable Care Act that Congress couldn’t bring itself to repeal, all because, in its view, the new tax law rendered those portions inoperable. Let a court do what congressional Republicans never could. Donald Verrilli, the top DOJ lawyer who twice defended Obamacare before the Supreme Court, called this development “a sad moment” and brought to bear the government’s historic duty to reasonably defend laws in court. “I find it impossible to believe that the many talented lawyers at the Department could not come up with any arguments to defend the ACA’s insurance market reforms, which have made a difference to millions of Americans,” Verrilli said in a statement.
Severability, or a court’s ability to salvage a statute when a part of it has been invalidated, is a default and not very difficult position to take when you’re the Justice Department, looking out for the integrity of the law and the institutional interests of the United States. That Sessions is willing to burn the house down over such a mundane concept tells us a lot about how unserious his whole position is. “No one thinks that severability strikes at the heart of who we are as a people and a country,” wrote Nicholas Bagley, a University of Michigan health-law expert who has written at length about this and other ho-hum attacks on Obamacare. “What’s more, the severability question isn’t even remotely hard.” That is to say, anyone can make a reasonable argument for it. Anyone except, apparently, the Trump administration.
One way to know that this unusual, indefensible nondefense runs counter to how the government is supposed to work is something Bagley flagged that happened moments before the Justice Department filed its brief in the Texas case. A group of career lawyers working on the case for months notified the judge handling it that they’d be jumping ship — they filed a notice with the court formally withdrawing their representation of the federal government. Georgetown Law’s Marty Lederman, who closely observes these things, called the 11th-hour withdrawal “flabbergasting.” In their stead, a new legal team led by Chad Readler, a political appointee leading the Justice Department’s Civil Division, would be taking over. Because life is one big coincidence, on the same day that Readler filed the DOJ brief in the Texas case, he received a nod from Trump to become a federal appeals judge. I kid you not. Republicans may just reward him for his fealty to the cause.
But there’s also the issue of Sessions’s fealty to red states. If the attorney general’s acquiescence to their demands seems cynically familiar, it’s because last year he pulled a similar stunt when he caved to pressure from Texas and other states that insisted, with zero legal basis, that a program benefiting Dreamers was unconstitutional — despite no court ever so declaring in the five-plus years the program was in effect. The play was so craven and legally dubious, a number of federal judges have since called Sessions on it and reinstated the Dreamer program, telling him in no uncertain terms that he needs to offer a better justification than simply flying a white flag whenever faced with a legal threat.
We don’t know how Reed O’Connor, the George W. Bush–appointed federal judge assigned the new Obamacare challenge, will respond to the Justice Department’s abdication, but he already seems predisposed to ruling against Obama-era policies that Republican-led states don’t like — as when he blocked the implementation of federal guidance and regulations aimed at protecting transgender students and patients. New York and other Democratic strongholds have intervened in the dispute and made all of the reasonable arguments to defend the health-care reforms that the DOJ wouldn’t, but O’Connor will have the last word. This could well be the next thing the judge finds unlawful.
Except it’s not. This latest ploy in federal court is no more than a frivolous, political exercise that’s part and parcel with Trump’s larger sabotage of the Affordable Care Act, a law he may not like but that he’s nonetheless duty-bound to enforce. Now that the Justice Department is in on this sabotage-from-within, there’s little hope that the Trump administration can ever be trusted to take principled stances in court anymore.
When the Obama administration declined to defend the constitutionality of the Defense of Marriage Act in pending litigation over same-sex federal benefits, the DOJ looked at the state of constitutional law vis-à-vis the historic treatment of gays and lesbians in the country and concluded that the law couldn’t stand. Some lawyers within the ranks were uncomfortable with the decision, but it was a careful, considered opinion, one the Supreme Court ended up adopting when it struck down the part of DOMA defining marriage as “a legal union between one man and one woman.” No such thoughtfulness is at play here. Sessions is just playing along with long-shot legal tactics aimed at toeing the party line — achieving through callous litigation what he himself couldn’t do when he was in Congress.