The Trump administration just demonstrated how far it is willing to go to destroy the Affordable Care Act, and not incidentally, the institutional integrity of the Justice Department with it. On Thursday evening, Jeff Sessions’ Justice Department announced that it will not defend the ACA against the latest ridiculous attack against the law, breaking with the long-standing tradition of the executive branch arguing to uphold existing laws.
After passage of the GOP tax scam at the end of last year, which zeroed out the tax penalty for people who fail to purchase health insurance, 20 states filed suit. They argue that the Supreme Court ruling in NFIB v. Sebelius upholding the constitutionality of the law declared that the individual mandate was a tax and now that the penalty for going without insurance is gone but the requirement to buy insurance is not, the mandate is unconstitutional. They go further, ridiculously, declaring that that means the entire law is unconstitutional, arguing that the consumer protections of the law are invalid. It’s ridiculous. But the Trump administration is going along with it.
In a brief filed in a Texas federal court and an accompanying letter to the House and Senate leaders of both parties, the Justice Department agrees in large part with the 20 Republican-led states that brought the suit. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law will not be valid, either.
It’s unprecedented enough that three of the career lawyers at the department who had been working on the case “abruptly withdrew from the litigation.” This is a much bigger problem than just the threat it poses to the ACA. As University of Michigan law professor Nicholas Bagley, says, “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 not a rule of law I recognize. That’s a rule by whim. And it scares me.”