Trump Administration Will Not Defend Obamacare In Court

The role of the courts is not to protect Congress from making difficult decisions.

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 Trump Administration policy may also affect the midterm elections. A recent NBC News/Wall Street Journal poll found healthcare to be the top concern of registered voters. Voters have long favored protection for pre-existing conditions.

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.

No. 1-10

It's kind of sad how states have to go through the court system rather than petition congress to get laws changed.

I'm guessing it is because courts are obligated to hear your case even if they dismiss it, but congress can ignore things for ever.

This case is absurd and will probably be dismissed early on. Arguing that the court should strike down a law because congress changed it is an affront to congresses ability to do their job.


@Thomas Swindler @ekay - If the socialized medicine in Europe and other parts of the globe is so terrible, why do the overwhelming majority of them have notably higher life expectancies than the US - all while paying far less(as a portion of total gdp) for healthcare?

We did beat Cuba! 'MURICA! Except when you think about how dirt poor Cuba is and how they've basically been running on fumes for over 50 years, that's not much of an accomplishment.


@ekay -- I haven't heard a single concrete Republican proposal to reduce the cost of health care in a significant way. Pointing at elective eye surgery is a silly example when heart attacks and the like cost the big money.


chris shmo: Not ALL people like socialized medicine, nor do they find that our version of socialized medicine has made their health care cheaper and better. I was doing some research looking for a surgeon who does certain surgical procedures. I was amazed at the number of Canadians who wrote blogs on the websites of American doctors that started with: I am a Canadian and came to the U.S. to get _____________procedure done because in Canada I had a one year or two year wait before I could get it done. They most likely have to pay out of their own pockets, but are willing to pay the price in order to get the procedure done in a timely manner (one to two years of pain, or non-treatment, can feel like a life-time, or can be a life or death situation. Apparently you have not been paying attention to the two British children who were denied procedures that might have been a cure, but died because their government would not allow their parents to take them out of the country to get treatment elsewhere. Government has NEVER been known for doing things cheaper and faster than the private sector. Believe me when I say that government has made health care FAR more costly for many of the people I know.

Thomas Swander
Thomas Swander

And the rest of the world loves waiting months or years for elective procedures. Yes sir, that government healthcare works well for everyone. Right.