The following article by Sam Baker was posted on the Axios website June 7, 2018:
The Justice Department will not defend the Affordable Care Act in court, and says it believes the law’s individual mandate — the provision the Supreme Court upheld in 2012 — has become unconstitutional.
Why it matters: The Justice Department almost always defends federal laws when they’re challenged in court. Its departure from that norm in this case is a major development — career DOJ lawyers removed themselves from the case as the department announced this shift in its position.
The details: The ACA’s individual mandate requires most people to buy insurance or pay a tax penalty. The Supreme Court upheld that in 2012 as a valid use of Congress’ taxing power.
- When Congress claimed it repealed the individual mandate last year, what it actually did was drop the tax penalty to $0.
- So the coverage requirement itself is still technically on the books. And a group of Republican attorneys general, representing states led by Texas, say it’s now unconstitutional — because the specific penalty the Supreme Court upheld is no longer in effect.
- The Justice Department agreed with that position in a brief filed Thursday night.
- DOJ said the courts should strike down the coverage requirement, as well as the provision of the law that forces insurance companies to cover people with pre-existing conditions.
Between the lines: For the Justice Department to stop defending a federal law is not unprecedented — the Obama administration did it with the Defense of Marriage Act. But it is exceptionally rare.
Yes, but: A group of Democratic attorneys general has been granted permission to defend the ACA in this case, so someone will be in its corner.
What to watch: The argument against it is by no means a slam dunk. For starters, critics — now including the Justice Department — will have to prove that people are still being injured by the remaining shell of the individual mandate, even without a penalty for non-compliance.
This story has been updated to note that the Obama administration stopped defending the Defense of Marriage Act.