Health and Human Services Secretary Alex Azar argued against backing a lawsuit seeking the full repeal of the health care law at a White House meeting in late December. | Alex Wong/Getty Images White house White House Obamacare reversal made over Cabinet objections The heads of the Justice Department and Health and Human Services Department opposed the unexpected switch in legal tactics.





The Trump administration’s surprising move to invalidate Obamacare on Monday came despite the opposition of two key Cabinet secretaries: Health and Human Services Secretary Alex Azar and Attorney General William Barr.

Driving the dramatic action were the administration’s domestic policy chief, Joe Grogan, and the acting director of the Office of Management and Budget, Russ Vought, according to three sources with direct knowledge of the decision. Both are close allies of White House acting chief of staff Mick Mulvaney, who helped to engineer the move.


But Monday’s terse, two-sentence letter from the Department of Justice to a federal appeals court reversing the administration’s previous partial opposition to a lawsuit challenging the 2010 health care law, took many Republicans aback — in part because they see it as bringing high political risk for a party that has failed to unite behind an Obamacare alternative and which lost House seats in the 2018 midterms when Democrats made health care a focus of their attacks.

The new challenge to Obamacare follows a heated internal administration debate that began late last year and continued through yesterday’s announcement. Azar argued against backing a lawsuit seeking the full repeal of the health care law at a White House meeting in late December, citing the lack of a Republican alternative, according to two sources briefed on internal discussions, while Mulvaney said that taking a bold stance would force Congress into repealing and replacing the law.

In a statement, HHS insisted there was no dispute between Azar and Mulvaney over the lawsuit.

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“Secretary Azar fully supports the Administration’s litigation position in the ACA case, which bears his name,” HHS spokeswoman Caitlin Oakley said in a statement. “Any insinuation that Secretary Azar has ‘butted heads’ with Mulvaney on this issue is false.”

Barr also opposed the decision and now finds himself in the uncomfortable position of running the department that leads the new charge against Obamacare. His opposition was based in part on skepticism among conservative lawyers about the wisdom of seeking to overturn the law, officially known as the Affordable Care Act. The Supreme Court in 2012 upheld the constitutionality of Obamacare’s individual mandate, which the current lawsuit is once again challenging. The attorney general, who was confirmed only a month ago, was overruled by the White House.

The lawsuit at issue seeks to invalidate the entire health care law. Previously, the Trump administration had supported challenges to parts of Obamacare without backing its complete invalidation — an outcome that would throw the U.S. health care system into chaos if an alternative system is not put into place by Republicans who have so far been unable to agree on a plan. The current challenge to the law was brought by a group of state GOP attorneys general.

Monday’s Justice Department letter to the U.S. Court of Appeals for the Fifth Circuit said federal lawyers would file a brief in support of a District Court judge’s finding that the individual mandate included in the Obama-era law is now invalid as a tax because the GOP Congress reduced the fine to zero dollars, and the government cannot levy a zero-dollar tax.

The move to support that ruling is, in effect, an endorsement of scrapping the entire law — a break from the administration’s previous support for a partial repeal of the law that would have left intact many of its provisions, including the expansion of Medicaid.

“It’s weird. It just doesn’t make a lot of sense legally and it doesn’t make a lot of sense in terms of the way DOJ normally approaches these things. DOJ normally tries to make litigation go away and tries to defend federal statutes,” said Jonathan Adler, a professor at Case Western Reserve University School of Law who has been a vocal opponent of the Affordable Care Act. “The substantive arguments in favor of that position aren’t very strong and you can’t find very many people who think the arguments in favor of that position are strong.”

Department of Justice spokeswoman Kerri Kupec said in a statement that, “The Department of Justice has determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal.”

The White House did not immediately responded to a request for comment.



While Mulvaney has been a low-key presence in Trump’s frenetic White House, the decision to take to take direct aim at Obamacare after the administration’s failure to repeal the law in 2017 offers a glimpse into how he wields his influence. Instead of focusing on limiting the access of other West Wing staffers to the president — something his predecessor John Kelly tried and failed to do — he has steadily built his own operation inside the White House and given his allies a direct line to Trump. They include Grogan, who took the reins of the Domestic Policy Council in late January.

That was evident on Tuesday, when Trump touted the new legal maneuver.

“The Republican Party will soon be known as the party of health care,” Trump told reporters in brief remarks during a visit with Senate Republicans on Capitol Hill Tuesday. “You watch.” Over lunch, the president tasked Republican lawmakers to come up with a new health care plan.

As a congressman from South Carolina, Mulvaney was a founding member of the Tea Party Caucus on Capitol Hill and one of the Republican Party’s most vocal opponents of the Affordable Care Act. He was one of about two dozen right-wing lawmakers who backed a government shutdown in 2013 in an attempt to push the Obama administration to scale back the law. As director of the Office of Management and Budget, he submitted budget proposals that proposed the repeal of Obamacare — a demand renewed in the White House’s 2020 proposal authored by Vought, Mulvaney’s one-time deputy.

The White House decision complicates life for Republicans on Capitol Hill, who are mostly opposed to the move — not least because nine years after the Affordable Care Act was enacted, most don’t support a full repeal of the law.

“I was extraordinarily disappointed in the position the Justice Department has taken,” said Sen. Susan Collins of Maine. “I thought it was bad enough when they didn’t want to defend parts of the law, the parts protecting people with pre-existing conditions. This goes far beyond that and I think this was a huge mistake.”

Other Republicans pivoted into talking points about congressional inaction.

“Congress needs to do its job and find a solution,” said Sen. Cory Gardner (R-Colo.), who faces a tough reelection campaign. But Senate Republicans have no apparent plan to act if the law is struck down.

Other Republicans eager to see their party take another crack at health care said Trump was shrewdly pressing them into action.

“We shouldn’t avoid this. And he’s not going to let us,” said Sen. Ron Johnson (R-Wis.).

Democrats, meanwhile, indicated they are poised once again to pounce on health care as a campaign issue ahead of the 2020 election. “They really are coming after your health care and we will be talking about that from today all the way through November of next year,” said Sen. Brian Schatz (D-Hawaii). “There’s no indication that we were planning on running a campaign regarding the Mueller investigation. We were, frankly, looking for a way to put health care front and center. And they just did it for us.”

“At the end of the day, they didn’t want to be against a lawsuit against Obamacare,” said Ramesh Ponnuru, a senior editor at National Review, which has editorialized against the lawsuit. “I’m not sure that makes sense. They could’ve said, ‘We’re against Obamacare, we’re moving on nine different fronts against it, but we don’t support this lawsuit.’”

Adam Cancryn contributed to this report.