On Wednesday afternoon, after Attorney General William Barr finished his truculent and mendacious testimony before the Senate, the Department of Justice filed perhaps the most embarrassing, illogical, and nakedly political brief in the history of the agency. With Barr’s assent, the DOJ argued that the entire Affordable Care Act is unconstitutional because Congress zeroed out the individual mandate’s penalty in 2017. The timing couldn’t be worse. After obliterating his own credibility at the Senate hearing, Barr scorched the Justice Department’s legitimacy, deploying fatuous pseudo-legal arguments to further the Trump administration’s partisan goals. The DOJ will not soon recover from Wednesday’s body blow.
Texas v. United States, the latest assault on the ACA, is built upon a series of sophistries. The case was brought by a coalition of conservative states, led by Texas, which recruited two consultants to serve as plaintiffs. They assert that when Congress reduced the ACA’s penalty to zero dollars, it inadvertently destroyed the whole law—the tax credits, the exchanges, protections for preexisting conditions, Medicaid expansion, everything. According to Texas’ theory, the Supreme Court only upheld the ACA because it interpreted the penalty as a tax. But, they claim, a tax that collects zero dollars is not a true tax. So the individual mandate can no longer be viewed as a tax, rendering it unconstitutional. And because Congress never intended the ACA to function without the individual mandate, the rest of the law must be struck down too.
This leap in logic makes no sense. It is true that taxes typically collect revenue, so perhaps the mandate cannot fairly be called a tax anymore. It could even be true that the zeroed-out penalty is now unconstitutional. But that does not matter, because if the penalty is illegal, it should be severed from the rest of the law. As the Supreme Court recently explained, when one provision of a statute is invalidated, courts should preserve the remainder of the law unless it is “evident” that Congress “would not have enacted those provisions … independently.” In other words, courts that strike down part of a law should not eviscerate the rest of it without evidence that Congress would’ve wanted that extreme result.
Here, congressional intent is about as clear as it can get. In 2017, Congress declined to repeal the entire ACA but chose to zero out the individual mandate’s penalty in the tax bill. By doing so, it declared its belief that the law could function without an operative penalty, a lawful exercise of its legislative powers. But Texas claimed that by amending the ACA, Congress inadvertently demolished it, because the law cannot function without a penalty—even though Congress decided that it could. Thus, according to the plaintiffs, courts should simply sweep aside this legislative intent and invalidate the law top to bottom.
In an opinion panned by liberals and conservatives alike, U.S. District Judge Reed O’Connor embraced this theory late last year and ruled that the entire ACA is unconstitutional. This view was too militant even for Attorney General Jeff Sessions’ Justice Department, which opted for a compromise position: It alleged that the mandate was unconstitutional but that only a few other provisions must fall with it. This half-measure was still a big deal, because the DOJ urged the courts to kill a centerpiece of the law: its bar on discrimination against people with preexisting conditions. And the DOJ’s brief at the time reflected, as University of Michigan law professor Nicholas Bagley put it, “enormous contempt for the rule of law.” It was, as other scholars noted, “excruciatingly stupid.” But at least the DOJ did not go whole hog, adopting Texas’ radical position that courts should reject Congress’ authority to amend its own law.
Until now. After Barr took control of the DOJ, the agency changed its position and has now told the 5th U.S. Circuit Court of Appeals that Texas is right—the full ACA is now unconstitutional. With a straight face, the Justice Department argues that, by reducing the mandate to zero dollars, Congress gave Americans a “legal command” to buy health insurance. The Supreme Court has said that such a direct command would be unconstitutional because the mandate could only be justified as a tax. Moreover, the justices who discussed severability said that the ACA cannot function without the mandate. In sum, the DOJ wrote, the mandate is now illegal, it cannot be severed, and so the whole law is unconstitutional.
Where to begin with this lunacy? Start with the DOJ’s framing of the mandate as it stands now. As a factual matter, the ACA currently gives Americans a choice between buying health insurance and paying nothing. There’s no real dispute here; if you forgo insurance, you will suffer no legal consequences. Yet the DOJ interprets the mandate as a “command” that gives Americans “no choice” but to purchase insurance. And its brief insists that Congress created this command in its 2017 tax bill—even though legislators surely knew that the Supreme Court already ruled that such a command would be unconstitutional in 2012’s NFIB v. Sebelius.
It requires willing suspension of disbelief to surmise that by giving Americans a choice not to buy insurance by zeroing out the mandate, Congress actually gave them a “command” to insure themselves. And it taxes credulity to believe that Congress would create this “command” after the Supreme Court stated that such a rule would be unconstitutional.
But imagine for a moment that the DOJ is right—that the Republican-led Congress of 2017 didn’t actually relieve Americans of their duty to buy health insurance but forced them to do so (without any enforcement mechanism). If the courts must strike down this new “legal command,” why should the remainder of the law fall with it? After all, Congress obviously thought the ACA could function without a mandate that raises revenue. To square this circle, the DOJ repeatedly cites the dissent in NFIB, which proclaimed that the mandate could not be severed from the remainder of the law. The Justice Department seems to think that the view of four dissenting justices (in a 2012 case) can override the view of Congress (in 2017 legislation). It appears to have forgotten that a dissent is not law.
The zaniest portion of Wednesday’s brief, however, has to be its effort to salvage the few provisions of the ACA that the current administration likes. It does so by selectively raising the problem of standing. Now, in reality, the individual plaintiffs in this case—two consultants who don’t want to buy health insurance—shouldn’t have standing to sue at all. That requires an injury, and these plaintiffs have none, because they pay no penalty for forgoing insurance. The DOJ casts this problem aside by asserting that they are injured by the “legal command” to insure themselves. And its brief argues that the plaintiffs have standing “to challenge the numerous provisions of the ACA that work together to cause” this injury.
But in a puzzling paragraph, the DOJ adds that the plaintiffs do not have standing to challenge several provisions of the ACA that criminalize health care fraud. Why? The real answer is that the Justice Department is already prosecuting people under these provisions, and those prosecutions would be thwarted if the full law were struck down. But the DOJ avows that while the plaintiffs have standing to challenge almost the entire ACA, they can’t challenge these provisions because they do not “actually injure the individual plaintiffs.” Oh, really? So the rule that insurers not discriminate against people with preexisting conditions, and the tax credits for lower-income Americans, and the expansion of Medicaid in states other than Texas—all these provisions “actually injure” the plaintiffs? But prohibitions on fraud somehow do not? The DOJ makes no effort to defend this evanescent distinction, because it is indefensible.
Barr reportedly opposed adopting this preposterous position but caved to President Donald Trump’s demands. He deserves no credit for his feeble resistance. Barr owns this brief, and it will live on as a testament to his craven lawlessness long after the Supreme Court rejects its casuistry. The Justice Department’s reputation will take years to recover from this nadir, if it ever does. Barr marched his agency to the brink of illegitimacy.
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