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The Republican War on the ACA, Now As Even More Farce

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Ian Samuel and Leah Litman understate somewhat:

Earlier today, the Justice Department filed a document in a case about the Affordable Care Act that was so radical, and so self-evidently without merit, that career lawyers in that agency would not sign their names to it. In fact, the document is such a transparent embarrassment that three career lawyers involved in the case withdrew their appearance before it was filed, presumably to avoid the taint of being listed on a docket where it appeared. Reading the filing is enough to explain why none of them could stomach it. The document is not so much a brief as the establishing shots of a heist. The damage it will do to the Department of Justice as an institution is hard to assess at this early date. But while we are not naïve enough to believe that these lawyers will endure the slightest sanction, social or professional for doing this, we are unable to resist a few remarks on their work product, such as it is.

In the government’s brief, the Trump DOJ makes two arguments. (A) The individual mandate, which the Supreme Court upheld in NFIB v. Sebelius, is unconstitutional; and (B) because the mandate is unconstitutional, the most important provisions of the Affordable Care Act should also be struck down, on the ground that they are not severable from the now-unconstitutional mandate.

The first of these arguments is excruciatingly stupid, but has the complementary virtue of being irrelevant on its own. The argument goes something like this: NFIB upheld the individual mandate as an exercise of Congress’ taxing power, but a majority of the Court concluded that it was neither a valid regulation of interstate commerce or necessary and proper to making some other valid regulation effective. But the Republican tax bill of last year eliminated the tax penalty for not having insurance (technically, it set the penalty at “$0”), and so the taxing power can no longer sustain the command to buy insurance. So, the argument goes, the now-toothless “requirement” to purchase one of the basic necessities of modern life is unconstitutional. Voila! To this we say: Whatever. We’re law professors, and not even we can get worked up about the difference between “do it, or pay the price, which is zero” and “do what you want.”

The Trump administration, however, understands the low stakes of their principal argument perfectly well. Their real argument is (B): that if the now-toothless individual mandate is unconstitutional, then the Affordable Care Act’s “community rating” and “guaranteed issue” provisions should also be struck down. These are the provisions that prohibit discrimination on the basis of pre-existing conditions and require insurers to sell to anyone willing to pay the listed price for a policy. Other than the Medicaid expansion and a handful of popular insurance regulations like forbidding cost-sharing for preventive exams, these are the Affordable Care Act. It is not wrong to say, in other words, that the Justice Department is now arguing that the entire ACA is, more or less, unconstitutional.

Another reason that the 2018 midterms are extraordinarily important is that Democratic control of a veto point can protect against congressional attempts to damage the ACA, which will almost certainly come if Republicans hold the House. This legal argument will not succeed barring a transformation of the Supreme Court, but it does reveal the Republican agenda.

Relatedly:

Republicans have gotten away with lying about their healthcare preferences. The lack of policy coverage is a problem. But it would be really nice if supporters of the ACA would stop abetting Republican lies by asserting that the ACA was basically the same as the Republican plan to end Medicare, Medicaid, and employer-provided insurance and replace it all with bad insurance that leaves most spending out-of-pocket. The position of national Republicans has never been and is not “a slightly more conservative version of the ACA.” Their offer to the uninsured is and has always been “nothing,” and their offer to most of the insured is “your insurance should be worse.” Tell the truth. It’s the easiest thing to remember.

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