DOJ flipping on the ACA

The Department of Justice wants the 5th Circuit to affirm a district court judge’s decision that the entire ACA has to be thrown out because the individual mandate is no longer a tax because the cost is zero and it can not raise any revenue.

As a legal position this is bananapants because Congress knows how to repeal laws. The particular Congress in question spent eight months trying to repeal the ACA and it could never assemble a working majority to do so. It could assemble a working majority to zero out the individual mandate penalty but that was it.

Texas and a bunch of other states decided to file a trolling lawsuit that argued that since the Obama administration had argued the individual mandate to be non-severable from guaranteed issue and community rating (Title 1 provisions), and the mandate was constitutionally saved as a tax and it is no longer a tax and since Title 1 is what got the rest of the ACA passed (including Medicaid expansion, biosimilar drug approvals, Medicare donut hole closures etc), the entire law has to go.

The Department of Justice originally had filed a limited opposition to the plaintiff’s preferred solution and suggested instead that only Title 1 had to go.

The Texas district court judge ruled for the plaintiffs and tossed the entire law but has stayed his ruling for the appeal.

DOJ is just jumping into absurdist legal positions fully, completely and head first with the hope that someone filled the pool with water.

In some ways this does not matter. Basically no matter what, this case will make it to at least a cert conference at the Supreme Court. I don’t know if the Supreme Court will want to take it on as the current ruling completely re-opens severability doctrine (as well as standing issues). The lawsuit started as a trolling attempt to protect Republican state attorney generals from primary challenges and it continues to move on like this.

The DOJ position changes things in that it is an institutional weight behind the idea that the argument that Texas is advancing is not bananapants. And that could matter. I don’t think it will, but it could.

49 replies
  1. 1
    Elizabelle says:

    In honor of the late, great efgoldman: Fuck ’em.

  2. 2

    They want to kill us. They are Nazis. This is not hyperbole.

  3. 3
    J R in WV says:

    Love your new coined tech legal term bananapants!

    So much benanapants going on in our world today, and we need better words for it…

  4. 4

    @J R in WV: It is not my term — it is a term that is sensitive to people with mental health challenges but still evocative of WTFness…

  5. 5
    Raoul says:

    I’d say that Mitch McConnell is freaked about the DOJ decision on this.

    Why do I say that? His twitter account has gone AIPACshit. A whole virulent stream of garbage. Because he needs cover. He needs the media to be mad about this so they won’t ask him how the GOP will fix this ungodly health insurance mess their BFF Trump is creating.

    But, craven media or no, we have to make health care stability and expansion the number one issue as we pound the drums for 2020.

  6. 6
    Betty Cracker says:

    In a way, it’s a gift. The GOP was always chipping away at the ACA with nothing else on offer. Now the Trump admin has come out in favor of snatching away protections for everybody with health insurance and throwing them back onto the tender mercies of the insurance companies. As someone else said in comments (maybe Kay?), it’s like they’re trying to make a system based on private insurance unworkable, which is the fastest way to convince people that single payer is the way to go. If we ever get to single payer, it’ll be thanks to these greedy, vindictive douche-canoes.

  7. 7
    Miss Bianca says:

    @schrodingers_cat: It just never fucking ends. It just never fucking ends. Right now I am freaking out because I can drive down into my little town, nod and smile at all the nice friendly people nodding and smiling at me, and think: “4 out of 5 of you all voted for people who want to see us all dead, and you’re JUST FINE with that! Yeah, you have a nice day, too!”

  8. 8
    Chris Johnson says:

    @schrodingers_cat: Want? That’s not quite right.

    They HAVE to kill us and everything functional about the USA before we regain power and take their power away.

    It’s that simple. They are everything we thought they are, and everything they currently do is about stopping justice, at all costs. That absolutely includes wrecking health care. Healthy Americans might be able to engage with electoral politics, dead ones can’t.

  9. 9
    Duane says:

    @J R in WV: How about evil? Evil as in a flaming car flying into the Grand Canyon then stomped on by Godzilla as the audience cheers type evil. Fuckem.

  10. 10
    Butch says:

    Didn’t at least one of the plaintiffs (Wisconsin) drop out as a result of November 6? Not sure it matters…..

  11. 11
    Chris Johnson says:

    @Miss Bianca: A lot of effort and money goes towards keeping them in their bubble, safely fooled.

  12. 12

    @Butch: Maine and Wisconsin have withdrawn as plaintiffs. It really does not matter as long as there is one plaintiff who really does not want sick people to go bankrupt and/or die.

  13. 13
    matt says:

    I thought this was illegal. Is the DOJ allowed to simply ‘not defend’ challenges to federal law?

  14. 14
    Raoul says:

    @Chris Johnson: Yup. They can’t ‘white flight’ their way out of being in a majority non-white nation, and it is making them pull on their white hoods and parade their evil down the streets. Obama was the warning sign.
    Now a host of women and brown people and even gays are clamoring to be POTUS. The door must be barred and the earth salted, apparently. We cannot let this be.

  15. 15
    Citizen Alan says:


    IIRC, the Obama DOJ refused to defend the Marriage Protection Act or whatever it was called in the SCOTUS case that legalized same-sex marriage. Not defending the Nazi swine at all, but there is precedent.

  16. 16
    Raoul says:

    @matt: No. But will it matter?

    And here’s where it gets even scarier: the Trump administration’s apparent belief that it has no obligation to defend an Act of Congress not only flies in the face of centuries of Justice Department practice.

    It’s also a close cousin to a decision not to enforce the law at all — after all, if the law is unconstitutional, as the administration apparently believes, how can it be enforced at all? To do so would violate the very Constitution that empowers the President to act.

    He concludes “if you think the rule of law is some quaint relic of a bygone age, well, you may miss it when it’s gone.”

  17. 17
    Matt says:

    TBH, I’m completely out of empathy for fucking Trumpkins. When their Dear Leader steals their Social Security checks and Medicare and they lose their homes and life savings, I’ll barely be able to muster the concern to step around them on the sidewalk instead of on them.

  18. 18
    Patricia Kayden says:

    Republicans voted umpteen times to repeal the ACA so this should be no surprise to anyone. The only question is whether Roberts will do the right thing and uphold the law when this case goes to SCOTUS.

  19. 19
    feebog says:

    As I understand it the Plaintiffs are making a severability argument. If the mandate is unconstitutional, then the entire law is unconstitutional. This argument is absurd on it’s face. First, SCOTUS already severed part of the law in determining the constitutionality. Thanks to Roberts the majority found the medicaid mandate was unconstitutional and stripped it from the law. Second, Congress stripped the mandate from the law in 2017. If the 5th circuit follows the law they will simply point to the SCOTUS position and overrule the District Court. If they uphold the decision it will be appealed. Then it gets interesting. Because Roberts would have to reverse himself on the merits.

  20. 20
    randy khan says:

    The really bizarre part of this is that the Justice Department essentially is saying that it believes that decades of law on the severability question – probably encompassing thousands of cases – are completely wrong. That’s the standard, more or less, for the government deciding not to defend a law passed by Congress. And the Justice Department uses those arguments all the time to help defend laws. It’s cutting off your nose to spite your face.

    (Never mind the part about how Congress pretty clearly must have thought the parts were severable when it passed the law reducing the tax to zero, since it was actually doing the severing.)

  21. 21
  22. 22
    Dev Null says:

    @Betty Cracker: This. Enough red states have taken the free money offered by Obamacare’s Medicaid expansion that a boatload of Republican voters will enjoy the logical consequences of voting Republican.

    If SCOTUS kills Obamacare (just in time for the 2020 elections!) Dems will have yet another argument for expanding SCOTUS.

    You know, along with the widely anticipated reversal of Roe v. Wade.

  23. 23
    Dev Null says:

    @Raoul: Adding the link to Bagley’s post, since you didn’t.

    It’s a great rant, well worth the time to read.

    Bagley closes:

    Maybe you think this level of disdain for an Act of Congress is to be expected from the Trump administration. Maybe it’s too much to process because of Russia and immigration and North Korea. But this is not business as usual. This is far beyond the pale. And it is a serious threat to the rule of law

  24. 24
    Dev Null says:

    @Matt: Keep gummint hands off my Medicaid!!


  25. 25
    Percysowner says:

    Sadly Rhenquist in Bush v. Gore made the “this case is SO special that we will rule this way but it can never, EVER be used again, especially if it will inconvenience a Republican” argument. So he could do it again. However I think The Chief Justice is politically savvy enough to realize that voiding the ACA right before an election year is bad Republican politics. just like I think he will leave Roe v. Wade standing while approving any and all legislation that will gut the ability to implement it, for the same reason,

  26. 26
    Another Scott says:

    Infuriating, and not really surprising. If the SCOTUS does smack this down, as they should, the Teabaggers will just keep trying and trying and trying. The only way around this is to vote in sensible people so that these lawsuits never gain any traction in the first place (sensible AGs, sensible people who appoint sensible judges, etc.). It’s going to continue to be a long slog.

    In other news, Andy Slavitt:

    Andy Slavitt Verified account @ASlavitt

    BREAKING: Big news tomorrow [Tuesday March 26] is Democrats will roll out the most sweeping health care bill to reduce the cost of health care for millions & increase coverage for additional millions.

    I have been reviewing details tonight and will tweet here tomorrow am. Follow if interested. 1/

    10:02 PM – 25 Mar 2019

    It’s not over, and temporary setbacks will be temporary (even though they will hurt millions of people).

    Keep fighting!


  27. 27
    biff murphy says:

    Add to this the $850 million they want to short medicare and medicaid and they better be digging their own graves, how f’ning stupid are they?

  28. 28
    Another Scott says:

    @Percysowner: You mean Rehnquist – Roberts wasn’t yet on the SCOTUS for Bush v Gore.


  29. 29
    Percysowner says:

    @Another Scott: Thanks I still had 42 seconds left to edit.

  30. 30
    Dev Null says:

    @randy khan: Personally, I think you’re giving DoJ more credit than they deserve.

    Reasonable minds etc, but I read this as one with “flipping the switch on high-efficiency light bulbs”: Obama is responsible, and Dear Leader is determined that nothing Obama accomplished shall stand.

    As goes Dear Leader, so goes DoJ and the GOP.

    It’s cutting off your nose to spite your face.

    The Trump Admin writ large.

  31. 31
    Mandarama says:

    @Another Scott: Thank you for this link, and for your bracing words. I feel so angry and sad about all of this bullshit–sad only because I used to be an extrovert, and I wanted to see people’s good qualities. Now I feel like I hate everyone until they prove themselves. It’s sad. But I live in the South and the “good people” defense doesn’t mean shit to me anymore. I don’t want to unify; I don’t want to share society or oxygen with these garbage people. I’m avoiding time with my loved 90-yr-old FIL because he watches Fox and I’m afraid if he says one thing I’m going to lay into him.

    Sorry for the vent. (I’m also teaching The Handmaid’s Tale for the first time in years and it hurts that’s it’s so relevant again.) I do appreciate your positive reminder!

  32. 32
    waspuppet says:

    Of course they’re taking this route. First off, despite the image they sell to the “liberal” media, conservatives adore having courts rewrite the lw. Second, THis way Trump gets to do it, whihc his most rabid fans will love, while the “sensible” Republicans can pretend they don’t know it’s happening.

  33. 33
    Dev Null says:


    However I think The Chief Justice is politically savvy enough to realize that voiding the ACA right before an election year is bad Republican politics.

    Seems like a slightly better than even bet. Presumably Texas judge O’Connor delayed issuing his opinion until after the midterms for this reason.

    OTOneH, Roberts strikes me as a slightly-more-rational but otherwise bog-standard GOP apparatchik (choose your definition of “rational” here … perhaps “self-aware” is more to the point). Gutting Obamacare is mainstream GOP politics… so Roberts might be able to invent legal rationale (as in striking down mandatory Medicaid expansion in the original Obamacare appeal) for striking down critical underpinnings of Obamacare but delaying the impact until 2021. IANAL, but the guys at LG&M have argued that Roberts invented new law and/or repurposed pre-Civil War decisions for Shelby County and Citizens United. You have to admire a legal mind with that kind of flexibility. /snark

    OTOtherH, people who read the tea leaves in the last Obamacare decision inferred that Roberts was telegraphing the message that “I’ve had enough of your nonsense, guys; cut the crap.”

    So I have read, anyway; YMMV.

    just like I think he will leave Roe v. Wade standing while approving any and all legislation that will gut the ability to implement it, for the same reason,

    Yeah, I’m with you on this one. AFAICT, the only question is how they will reverse Roe v. Wade in practice without reversing it in fact. (Saying that’s how I expect the decision to go; I just don’t know the rationale they’ll use.)

  34. 34
    Kathleen says:

    @schrodingers_cat: No it is not hyperbole. These soulless ghouls want to kill us.

  35. 35
    James E Powell says:

    And, once again, my rage against every person who refused to vote for Hillary Clinton is boiling over.

  36. 36
    Ben Cisco says:


    But I live in the South and the “good people” defense doesn’t mean shit to me anymore. I don’t want to unify; I don’t want to share society or oxygen with these garbage people.

    TELL IT!

  37. 37
    Mary G says:

    @Betty Cracker: I think so, too. The ads write themselves: film of Twitler promising great healthcare, then he lied! He wants people with pre-existing conditions and your 18-26 year old kids to go without coverage. Big protests and interviews with people whose lives were saved by the ACA. We won the midterms on this.

  38. 38
    jl says:

    ” DOJ position changes things in that it is an institutional weight behind the idea that the argument that Texas is advancing is not bananapants.”

    I agree. But the DOJ and whole executive branch is bananapants right now. So, it implicitly invokes that principle that mere institutional power and prestige can never be bananapants. I guess there is some relationship to the ‘No true Scotsman’ principle.

  39. 39
    randy khan says:


    Sadly Rehnquist in Bush v. Gore made the “this case is SO special that we will rule this way but it can never, EVER be used again, especially if it will inconvenience a Republican” argument.

    it’s actually just been revealed that this particular bit of awfulness was authored by Sandra Day O’Connor.

  40. 40
    randy khan says:

    @Dev Null:

    Oh, I’m not giving them any credit at all. As you say, it probably was a DJT special – “We can’t say any of that law should be upheld; file something that says it’s all bad.” And of course he wouldn’t be interested in arguments about how bad it would be in the long run.

  41. 41
    Uncle Cosmo says:

    @Percysowner: But 42 seconds, it seems, is not enough time to mistype “Rehnquist,” recognize the error & then correct it. FTR, cut & paste is your friend! /gentle chiding


    I don’t want to share society or oxygen with these garbage people.

    OK. So what’s your chosen alternative?

    Like it or not, nearly 63 million Americans voted for Trump last time out. We might be able to shake 1/3 of them loose. That still leaves 42 million people – 1/3 of the electorate – and their families who’ve bought into Trumpofascism. With a disproportionate amount of weaponry. Including large segments of the military & the police. And they’re not conveniently located in one geographical area ripe for secession. They’re in the next state over. The next county. Down the fucking street.

    What the fuck do we do about them??

    Maybe you’re planning to get the hell out of Dodge. I have the means & the ethnic background to do so (& I may very well apply for that EU passport just in case) but I’d rather stay & work to take the country back. But what does that even mean when 27% of the people around you want everyone who doesn’t look like them, talk like them, love like them, or think like them permanently impoverished, enslaved, or dead?

    It seems to me that at best we can send them scurrying back beneath their rocks – where they will nurture their (mostly) imagined grievances, planning their revenge, lying in wait for the slightest relaxation of our vigilance – & they will be aided & abetted by the Global Oligarchy-In-Waiting & their minions in the media who’ve sold their ID as citizens for that of privilege, profit, &/or sadism.

    (And those of you who put their hopes in some sort of Truth & Reconciliation Commission had best keep in mind that the white bosses of South Africa were a much smaller percentage of the population & nearly the rest of the world had thrown its full weight into breaking the apartheid regime. We won’t have those advantages. [Although from the tenor of these threads, a large chunk of the Jackaltariat seems to lean toward Truth & Retribution actions. Versus at least 1/3 of the population.])

    How are we going to manage this? I dunno. But I think someone needs to start thinking very soberly about how we go forward even if we take back (most of) the government in 2021.

  42. 42
    ProfDamatu says:

    @Betty Cracker: I wish I had the confidence that it would play out that way. (Don’t get me wrong, it would still be terrible, and thousands, maybe millions, would lose their lives to lack of care in the interim between the ACA’s demise and single payer.) I’m just not sure that there would be the political will to institute single payer for possibly a decade or more. The reason being, the majority of people who get their insurance from their employers really couldn’t care less about “deadbeats” like me who don’t qualify for ESI. As long as we’re talking about doing something that will primarily benefit less than 20% of the population, it’s going to be a huge slog, especially when the 80% are terrified of losing what they already have. Yes, ESI has been getting shittier and shittier, but I think we’re still a long way from it reaching heights of shittiness that will make the majority of ESI recipients happy to give it up for the unknown represented by single payer. I hope I’m wrong about that!

  43. 43
    ProfDamatu says:

    @Another Scott: Friendly amendment: those “temporary setbacks” will KILL millions of people, who will go for months or years with NO access to coverage and thus no access to health care. Sorry for my tone; the ACA saved my life, so I’m really salty about the prospect of my healthcare coverage being yanked away.

  44. 44
    ProfDamatu says:

    @ProfDamatu: The reason I speculate that it might take a decade or more is based on the fact that it took 20 years after the failed attempt during the Clinton administration for serious health care access reform to be tried again. Arguably it would take less than that if the ACA were repealed, because so many people would be losing insurance all at once (as opposed to the dribs and drabs under the pre-ACA status quo), but IMO the biggest obstacle would still be the reluctance of the folks on ESI to give up what they have, shitty as it often is, for the uncertainty of single payer. And ESI is still by far the most common way that people obtain access to health insurance. :-(

  45. 45
    Mandarama says:

    @Uncle Cosmo:

    OK. So what’s your chosen alternative?

    Truthfully? Probably continue to feel gut-churning worry, keep to myself a lot more, avoid new acquaintance. Retreat from closeness with people I know because there’s a good chance they support garbage people and their terrible ideas. In other words, misanthropy. My husband does have dual citizenship and an EU passport, but I don’t.

    Mainstream Christians in this region in the late 20th century pretty much destroyed my connection to religion, too. Not surprised there’s an overlap between them and Trump voters. I’m cringing over white people as a group (I’m white); I am not real keen on straight people most of the time (I’m cishet and married); and suburban moms who voted with their DHs are also on my shit list (I’m a suburban mom, kids in sports etc.). A lot of men aggravate me, despite the fact that I’m married to one and gave birth to two more. And I’m sick to death of anti-intellectualism; I’m an academic from rural poverty.

    I’m so sweet and manipulative that my sister used to call me the Wingnut Whisperer before I left Facebook. I used to work so hard to get people to see my point of view, to get them to think in terms of real folks and the real effects of policy. Maybe it’s my age, but I kinda don’t give a shit anymore. These are garbage people who want to create a society no thinking woman (or man) should want to live in, even the ones I have loved.

    I worked hard as a volunteer for Obama, Hillary…I’ve taught my kids about the importance of voting. I’ve called and harangued my reps, Senators, their aides local and in DC. I try to believe in what Obama said about the future of our nation. But honestly, I don’t think I’ll ever feel unity with my fellow Americans as a body again. That’s one reason I’m sad.

  46. 46
    Mandarama says:

    I should also note that I know none of these awful people are new; their ideas aren’t new. I was just protected by privilege into thinking it had gotten better and gone underground. I became middle class, I’m white, I was clueless. 63 million is a hell of a lot more than I would have said in my worst nightmare.

    I’ve said this before here, but the ACA would have made so much difference had it been around when my parents died young (45 and 51, respectively). That the GOP is trying yet again to get rid of it confirms that I don’t want to share oxygen with anyone who even stupidly supported these people. I’m insured, but I remember the terror when I wasn’t. Fuck all of these low-quality humans.

  47. 47
    Gravenstone says:

    @Matt: That’s kind of where I am. Recognizing that as terrible as things will be in the interim between the ACA potentially being struck down entirely, and some manner of M4A or similar being put up to replace it, that Trump’s loudest and proudest are likely to be the ones disproportionately affected by that missing coverage. May they savor the result. The sad part is those who do not fetishize Trump also being made to suffer.

  48. 48
    ProfDamatu says:

    @Gravenstone: I agree. With the caveat that I would prefer to fight as hard as possible to save the ACA, and if it dies, for absolutely anything that would help ease that suffering and dying, rather than holding out for single payer or nothing (which I don’t think will happen until the typical ESI plan is so shitty that the people on it say to themselves, “Hey, single payer can’t possibly be any worse than what I have now, let’s go for it.”). It’s just hard for me to imagine that the political will for single payer would appear for several years at least post-ACA demise, and that’s a *lot* of preventable suffering and death! Perhaps I’m being selfish here, but I don’t relish the idea of being one of the eggs that gets cracked to make the omelet of single payer. :-)

  49. 49
    Zinsky says:

    This might be the act that causes Trump and most of the remainder of Republicans in Congress to get thrown out of office. The arrogance of these assholes to take away poor people’s only way to access quality health care is breathtaking. It’s so obvious that they just don’t f*cking care! If a wealthy person (especially a white one) has to pay one nickel more in taxes, they are against it. Unbelievable! Oliver Wendell Holmes once said that, “taxes are the price we pay for civil society”. Apparently, the modern Republican Party will give up everything, including civility, to not have to pay any taxes. What shallow, empty human beings…

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