Notice & Comment

Texas Fold ‘Em

In an unexpected move, the Justice Department filed a brief this evening urging a Texas court to invalidate the Affordable Care Act’s crucial insurance reforms—including the prohibition on refusing to cover people with preexisting conditions. Although the ACA is not in immediate peril, the brief represents a blow to the integrity of the Justice Department. It also displays enormous contempt for the rule of law.

For those of you just coming to the case, this is from my earlier recap:

In their complaint, the states [including Texas and other red states] point out (rightly) that the Supreme Court upheld the ACA in NFIB v. Sebelius only because the individual mandate was a tax and (rightly) that Congress has now repealed the penalty for going without insurance. As the states see it, the freestanding requirement to get insurance, which is still on the books, is therefore unconstitutional. Because it’s unconstitutional, the courts must invalidate the entire ACA—lock, stock, and barrel.

If that argument about the “inseverability” of the amended mandated from the rest of the ACA sounds inane, that’s because it is. When Congress first adopted the individual mandate in 2010, it was an essential part of a broader scheme. But Congress is always free to amend its statutes, even to omit what it previously thought was essential. That’s what Congress did when it zeroed out the mandate.

So we don’t have to speculate what Congress would’ve done if it had a choice between invalidating the ACA’s insurance reforms or just invalidating the mandate. Congress made that choice. For a court to now reject it in the service of an absurd argument about severability would be the rankest kind of judicial activism.

Without question, then, there’s an argument to be made in the ACA’s defense. And the Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense. This brief puts that commitment to the torch.

I am at a loss for words to explain how big of a deal this is.

The laws that Congress passes and the Presidents signs are the laws of the land. They aren’t negotiable; they’re not up for further debate. If the Justice Department can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books. That’s as flagrant a violation of the President’s constitutional duty to take care that the laws are faithfully executed as you can imagine.

But don’t take my word for it. For Justice Department lawyers—I count myself among them (2007-10)—the duty to defend congressional statutes is at the core of what it means to be a government attorney. Yet, hours before the federal government filed its brief, three line attorneys from the Justice Department withdrew from the case. That’s almost unheard of. These are lawyers who have made arguments they personally disagreed with countless times. They’re civil servants. They’re good soldiers. Yet they could not sign it. That’s how far out the administration’s position is.

Do you want to live in a country where the Justice Department can embrace the craziest of arguments and decline to defend laws—or even enforce them!— on that basis? The President has a duty to take care that all the laws are executed, not just the ones he likes. And while there are cases in which the Justice Department has deviated from that principle, they are extremely rare.

Indeed, is there any precedent for this? Odds are we’re going to hear a lot in the coming days about the Obama administration’s decision not to defend the Defense of Marriage Act. There, however, we had a question about the meaning of the Constitution that struck deep on questions about fundamental values. Just as we no longer believe it’s constitutional to offer federal mortgage insurance only in white neighborhoods, the Justice Department concluded that we, as a country, had come around to the view that it was no longer constitutionally tenable to deny equal rights to gay people.

Whether you agree or disagree with the Justice Department’s decision—and it made lots of line attorneys nervous—it was moored to the public’s evolving sense about what the Constitution meant. By 2011, a justification that once seemed unobjectionable had come to seem untenable.

This case could not be more different from DOMA. The question is not whether a penalty-free mandate is unconstitutional—who cares, honestly? The critical question, instead, is a technical one about severability. No one thinks that implicates a clash of fundamental constitutional values. No one thinks that severability strikes at the heart of who we are as a people and a country. What’s more, the severability question isn’t even remotely hard. If a cockamamie argument like this is a sufficient basis to decline to defend a statute, what isn’t?

I for one am concerned. No, I’m frightened. Not so much about the ACA: I still regard it as extremely unlikely that the Supreme Court will adopt an argument as far-fetched as the one that the states have advanced. And, so far as I can make out, the Trump administration will continue to enforce the ACA while the litigation progresses.

No, I’m frightened for what this says about the rule of law. I don’t like being an alarmist about the rule of law—there’s a risk I’ll come off as unhinged and naïve. But I’m serious. The Trump administration has just announced that it doesn’t care that a law was passed by Congress and signed into law by the President. All that matters if that it hates the law and has a (laughable) argument for casting it aside.

That’s not a rule of law I recognize. That’s a rule by whim. And it scares me.


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