The Trump Administration has announced that it will no longer defend the Affordable Care Act in court, claiming the Obamacare law is unconstitutional. The move mirrors a decision by the Obama Administration to end government legal defense of the Defense of Marriage Act in 2011.
The Supreme Court upheld most provisions of the ACA, but 20 states filed a new lawsuit against the Obama-era health insurance law earlier this year. The new suit alleges that when Congress removed penalties for violating the individual mandate last year it made the rest of the law unworkable.
“I am at a loss for words to explain how big of a deal this is,” Nicholas Bagley, a University of Michigan law professor and former Justice Department attorney, told USA Today.
“The Justice Department has an obligation to defend the law and it has refused to do so because it dislikes this particular law,” Bagley said, adding that the Trump Administration’s “dislike for the Affordable Care Act outweighed its respect for the rule of law.”
Ironically (or hypocritically), Bagley defends the Obama Administration’s decision to stop legal defense of the DOMA because President Obama disliked that particular law. “Refusing to defend a law that countenanced overt discrimination against a disfavored group is different from refusing to defend one that regulates health insurance,” Bagley wrote in March, “But that’s the thing about precedent. It can be stretched.”
The Trump Administration move does not mean that Obamacare will lose the lawsuit by default. As with the DOMA, the courts have approved private attorneys to step in for the DOJ. Axios notes that a group of Democratic attorneys is being allowed to defend the ACA in court.
The DOJ does not join with the states in the full lawsuit, but is arguing that the ACA’s provisions regarding pre-existing conditions should be invalidated. In a letter to Minority Leader Nancy Pelosi (D-Cal.), Attorney General Jeff Sessions said, “Otherwise individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else.”
The future of the Obamacare lawsuit is uncertain. The makeup of the Supreme Court has not changed materially since the previous decisions upheld the law. A different outcome would most likely require Chief Justice John Roberts to change his vote.
The role of the courts is not to protect Congress from making difficult decisions. The pre-existing provisions of the ACA, although economically problematic, are not unconstitutional. A better solution to the problem is for Congress to come to an agreement on a new law to fix the problem.
Having failed to reform or replace Obamacare, Republicans are now dependent upon the courts to kill the failed health insurance law. With Congress in a stalemate, both parties are increasingly looking to the courts to bypass the legislature and break stalemates. While this is not the role that the founders envisioned for the courts, if Democrats don’t like the Trump Administration’s decision, they have only Barack Obama to blame.