In what may be the Trump administration’s most dishonest and cowardly attack yet on the Affordable Care Act, the Department of Justice late Thursday asserted that key provisions of the law are unconstitutional and refused to defend it against a legal challenge brought by 20 red states.

The move, disclosed in a federal court filing, left healthcare and legal experts aghast. The administration’s argument takes aim at the ACA’s protections for Americans with preexisting medical conditions, who are guaranteed access to health insurance at standard premium rates by the law.

Three DOJ attorneys who had been working on the case withdrew the day before the filing in what was widely assumed in the legal community to be a protest against the agency’s position.

People who care about public health don’t do this. People who care about the rule of law don’t do this. Former Medicare chief Andrew Slavitt


The Justice Department’s abandonment of the ACA leaves the defense of the law in the hands of 16 state attorneys general, including California’s Xavier Becerra, whom the court granted standing on May 16 to intervene in the case. They responded promptly to the filing late Thursday by calling the government’s position “profoundly undemocratic” and asserting that its attack on the ACA’s constitutionality would “cause catastrophic harm to tens of millions of Americans.”

What concerned legal experts even more was the administration’s refusal to defend the law against what’s widely viewed as a hopelessly frivolous legal claim. The government’s refusal to defend the law “represents an enormous blow to the integrity of the Justice Department,” wrote Nicholas Bagley of the University of Michigan law school.

“The laws that Congress passes and the President signs are the laws of the land,” Bagley wrote. “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.”

Aware that some conservatives will point to the Obama administration’s refusal to defend the Defense of Marriage Act in 2011, Bagley observed that the DOMA case implicated profound constitutional questions of equal rights for gay people, which the law constricted. (DOMA defined marriage as between a man and a woman.) Here, by contrast, the Justice Department has bailed out over an abstruse legal principle known as “severability.”


Trump’s action in giving the right-wingers a clear field is aimed at undermining the ACA without addressing it head-on; undoubtedly it knows that a head-on attack is a loser legislatively and even politically. That’s what’s so cowardly and dishonest about its approach. But it’s part and parcel of the Trump approach. He’s tried every backdoor stunt imaginable to undermine the ACA: cut funding for enrollment, education and outreach; promoted short-term junk insurance plans as alternatives to real health insurance; placed obstacles in the way of Americans seeking Medicaid coverage; etc.

Let’s examine the latest case:

The 20 right-wing attorneys general and other red state officials, led by Ken Paxton of Texas, brought their lawsuit on Feb. 26 in Fort Worth federal court. Their argument was based on the tax cut bill enacted by the GOP-controlled Congress and signed by President Trump in December. That bill reduced the ACA’s penalty for not having health insurance — the so-called individual mandate — to zero.

The red states observed that when the Supreme Court upheld the ACA in 2012, it did so on the basis that the penalty was effectively a tax and that because Congress’ taxing authority is absolute, the law was constitutional. Remove the tax as the December bill did, the states argued, and everything in the ACA that is linked to the individual mandate was now unconstitutional.


What’s linked to the individual mandate are the ACA’s community rating and guaranteed issue provisions, which hold that all applicants for health insurance in the individual market must be served, and all at the same premium rates. (Minor distinctions for age and smoking are permissible, but that’s it.) Texas et al. argue that those provisions can’t be “severed” from the individual mandate tax, and therefore they must be unconstitutional.

The problem with the Trump Administration's response to the latest ACA suit is not its refusal to defend the mandate so much as its adoption of problematic (and quite cynical) approach to severability. — Jonathan H. Adler (@jadler1969) June 8, 2018

Of course those provisions are the key to protecting people with preexisting medical conditions or medical histories, who had been locked out of the individual market for years before the ACA.

How important is that protection? The Department of Health and Human Services estimated in January 2017 that half of all Americans, or 133 million people, had conditions that could have led to their being “denied coverage, or offered coverage only at an exorbitant price, had they needed individual market health insurance before 2014,” when the ACA provisions kicked in.


Even conservative legal experts find the Texas severability argument to be less than paper-thin. Jonathan Adler of Case Western University law school calls it a “problematic (and quite cynical) approach to severability.” Adler, it may be remembered, was an architect of King vs. Burwell, the lawsuit that aimed to invalidate the ACA’s premium subsidies in 36 states based on a tortured reading of a single passage in the law. The Supreme Court decisively rejected that argument in 2015, but if Adler thinks this argument is frivolous, that’s saying something.

Among the many weaknesses of the Texas claim pointed out by legal experts and the intervening states, the tax cut bill didn’t actually kill the individual mandate. It’s still in the ACA, even if the penalty for violation is (for the moment) set at zero. Taxes don’t have to produce revenue continually to remain in effect, the interveners observe — it’s not unusual for Congress to delay a tax or suspend it for a year or more; that doesn’t mean it’s gone.

Others assert that congressional intent is crystal clear: While the lawmakers meant to reduce the mandate penalty to zero, they specifically kept in place the community rating and guaranteed issue rules. It may have been unwise, even cynical, for Congress to keep those provisions despite being advised they would drive up premiums in the absence of the individual mandate.

But as Leah Litman of UC Irvine law school and Ian Samuel of Harvard wrote Thursday on the Take Care legal blog, “Congress chose, nonetheless, to kick the legs out from under the mandate and risk a death spiral in the insurance market. Although that decision was profoundly unwise, and probably calculated to make the law fail, it is what Congress wanted.” (Emphasis in the original.)


What remains is to divine the motivations of the plaintiffs in this case, and thereby those of the Trump White House. Having been unable to repeal the Affordable Care Act by actual vote — after all, 70 repeal attempts have failed in the House — they’re plainly out to take another crack at destroying the act via tortured arguments in court. It’s possible that they’ll find a weak-minded federal judge to see things their way at the district court level and even push this wagon up the hill again to the Supreme Court. But the Court has upheld the ACA at every opportunity.

The Trump administration, as Bagley observes, “loathes the ACA.” Why it does so is a mystery, unless one simply assumes that it thinks driving up premiums for ordinary Americans and locking millions out of the health insurance market is a desirable outcome. The public disagrees, by the way. Voters regard healthcare as a major issue for the coming election and want to see costs come down, not go up. The ACA is now viewed favorably by more Americans than otherwise, and repeal is broadly unpopular.

“People who care about public health don’t do this,” Andrew Slavitt, who ran Medicare and Medicaid under Obama, tweeted Thursday about the Justice Department’s abandonment of the ACA. “People who care about the rule of law don’t do this.”

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