It’s been a controversial couple of days at the Department of Justice. On Sunday, Attorney General William Barr determined that the evidence in the Mueller report did not equate to an obstruction of justice charge for Trump — despite not interviewing the president to discern if he had “corrupt intent.”
And late on Monday, Justice Department attorneys filed a letter with the U.S. Court of Appeals for the Fifth Circuit in New Orleans, agreeing with the ruling of a federal judge in Texas who determined late last year that because the Trump tax cuts eliminated the Affordable Care Act penalty for not having health insurance, the ACA is no longer constitutional.
When Judge Reed C. O’Connor invalidated the law in Texas in December 2018, many legal experts anticipated that the ruling would be struck down. “This is insanity in print, and it will not stand up on appeal,” offered University of Michigan Law School professor Nicholas Bagley. But the decision for the Department of Justice to support the full repeal of ACA, better known as Obamacare, makes a significant departure from Jeff Sessions’s tenure as attorney general. Under Sessions, in June 2018, the Department of Justice announced it would not fully defend the ACA in court, arguing to cut the law’s coverage of preexisting conditions, while upholding the rest of the provision.
The Justice Department’s letter on Monday is consistent with Barr’s comments from his appointment hearings in January. When asked by Kamala Harris if he would reconsider the DOJ approach to Obamacare, he said he would “like to review the department’s position on that case.” Harris then asked if he was “open to reconsidering the position,” to which he replied with a yes.
Most likely, the case will mark the third time the Supreme Court decides on the constitutionality of the Affordable Care Act. The Court upheld the law in 2012 in a 5-4 victory for Democrats, and in 2015, voted 6-3 in favor of the clause that provides nationwide tax subsidies to poor and middle-class Americans who want to buy health insurance.
Coming off the heels of a clear political victory, it’s a bit odd that the DOJ would act to repeal a popular law on an issue that Democrats ran and won on in the midterms. Democrats have a clear advantage on health care, and the party’s 2020 frontrunners only intend to expand on coverage options. To remind voters that the GOP still wants to strip away provisions that expand care to millions of Americans seems like an unforced error on the issue voters care about most.