The Justice Department has now announced that it will not defend any part of the Affordable Care Act. If it has its way, the entire ACA should fall.https://t.co/GTJInGDsA4
— Nicholas Bagley (@nicholas_bagley) March 26, 2019
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.