Man, what a day for bad Obama precedents. First the DOJ follows O’s lead by seizing records from a reporter to find a leaker, then it announces it’ll selectively refuse to defend disfavored federal statutes in court, just like the last administration did with DOMA.
Imagine how furious the left would be at these Justice Department affronts to freedom of the press and the rule of the law if they hadn’t pioneered them. Thanks, Obama!
It feels strange that the executive branch has to try to tank ObamaCare in court to get it undone when Republicans control both houses of Congress and the White House, but we’ve already been there, done that on legislative solutions. Time for Plan B. The catalyst for this decision is a lawsuit filed by various red states against ObamaCare claiming that, by SCOTUS’s own reasoning, the entirety of O-Care is now unconstitutional. How do they figure that? Because, if you remember John Roberts’s opinion from the ObamaCare ruling in 2012, the law is valid only because the individual mandate counts as a tax for constitutional purposes. Because Congress has the power to tax, it has the power to issue the mandate. And the mandate is the foundation for the entire program. Four justices were prepared to rule in 2012 that the whole law was unconstitutional because the mandate was.
Last year, though, the GOP repealed the mandate’s financial penalty. It used to be that if you refused to buy health insurance, you’d be fined — or “taxed” — a certain percentage of your income by the IRS. The mandate is still technically on the books but there’s no longer any penalty for refusing to comply with it. Which means there’s no tax. And if there’s no tax then there’s no longer any constitutional basis to support ObamaCare. The DOJ now agrees with that view, although rather than insist that the entire program has become unconstitutional, they’re claiming that only certain specific parts are, most notably the requirement that insurers must cover people regardless of preexisting conditions. (The ObamaCare insurance exchanges, for instance, should be left untouched in the DOJ’s view.) The idea is that if there’s no longer any revenue from the mandate to finance coverage for the sick then insurers can’t very well be expected to finance coverage for sick. So the DOJ will no longer argue that they should. If the courts agree with them, the entire program will be effectively eviscerated.
The department’s argument, if adopted by U.S. District Judge Reed O’Connor, “would be breathtaking in its effect,’ said Timothy Jost, a retired Washington and Lee law professor who follows such litigation closely. “Of all of the actions the Trump administration has taken to undermine individual insurance markets, this may be the most destabilizing. . . . [If] I’m an insurer, I don’t know what I am supposed to do or not.”
Jost, an ACA supporter, noted that the administration’s decision not to defend the law comes during the season when participating insurers must file their rates for next year with state regulators. It raises new questions about whether insurers still will be required to charge the same prices to all customers, healthy or sick…
University of Michigan law professor Nicholas Bagley, another ACA defender, went even further in a blog post. “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,” he wrote. “That’s not a rule of law I recognize. That’s a rule by whim. And it scares me.”
That’s true, and it was also true seven years ago when Obama decided that DOMA offended his conscience too much to let the DOJ do its job. Little late to complain now.
If you’re wondering what happens now in court, presumably the court will appoint a third party to defend the law in the place of the DOJ. That’s happened before, and not just with DOMA. Near the end of the Clinton administration, SCOTUS took up a case that invited them to overturn the ruling in Miranda v. Arizona, which famously required cops to warn suspects of their right to remain silent when they were in custody. The DOJ sided with the petitioner and asked the Court *not* to overturn the decision. The Court ended up inviting a third party to argue the case for overruling Miranda. It didn’t work — the Rehnquist Court upheld the decision, probably on “if it ain’t broke, don’t fix it” logic — but lest you thought the DOJ refusing to defend O-Care means the red states would win their lawsuit by “forfeit,” think again. The courts will let someone argue for ObamaCare, probably the 16 blue-state AGs who have already filed an amicus brief in support of the statute.
The politics here are interesting too. Righties will exult if SCOTUS ends up smashing Obama’s greatest “achievement” by agreeing with the DOJ that repealing the mandate penalty tore the heart out of the law. But lefties may be okay with that too. It hands them a talking point they crave to explain rising ObamaCare premiums: Republicans are to blame. The part of the law requiring coverage for preexisting conditions is its most popular feature; if Dems can draw a straight line between that feature going away and the DOJ-enabled red-state initiative in court, they think they’ll clean up this fall or in 2020. A loss in court for ObamaCare wouldn’t be a total loss for Dems, especially if they end up in charge of the House next year and have a seat at the table. Pelosi’s already chattering about “Medicare for all,” never mind that we can’t even afford Medicare for some. If the courts give America a clean-ish slate on health-care reform, that may not go the way we’re hoping. Although, given the Dems’ drift leftward, they’re headed towards something more statist than O-Care whether the courts blow up the law or not. Might as well get on with it.