Trump Administration Says ObamaCare Unconstitutional

The Justice Department has reversed course and will not fight a December ruling overturning the Affordable Care Act.

As noted here last December, U.S. District Judge Reed O’Connor ruled the Affordable Care Act unconstitutional using some rather bizarre legal logic. To wit, because Congress had recently removed the penalty for failure to carry health insurance in the original ObamaCare statute, the justification by which the Supreme Court had found the mandate Constitutional was moot. Furthermore, O’Connor deemed the mandate an essential part of the plan and thus not severable. As Doug Mataconis argued in some detail, since the law in question had specifically stated that each provision was severable, the ruling was nonsense.

Both of us expected this ruling to be overturned in short order by the 5th Circuit Court of Appeals. But an interesting development overnight makes that much less likely.

CNN (“Trump administration now says entire Affordable Care Act should be struck down“):

The Trump administration on Monday said the entire Affordable Care Act should be struck down, in a dramatic reversal.

In a filing with a federal appeals court, the Justice Department said it agreed with the ruling of a federal judge in Texas that invalidated the Obama-era health care law.

In a letter Monday night, the administration said “it is not urging that any portion of the district court’s judgment be reversed.”

“The Department of Justice has determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal,” said Kerri Kupec, spokesperson for the Justice Department.

It’s a major shift for the Justice Department from when Jeff Sessions was attorney general. At the time, the administration argued that the community rating rule and the guaranteed issue requirement — protections for people with pre-existing conditions — could not be defended but the rest of the law could stand.

After the Justice Department took that position, federal District Judge Reed O’Connor struck down the entire law and the case is currently before a federal appeals court.

Trump and the administration repeatedly promised — particularly leading up to the midterm election — to protect people with less-than-perfect medical histories.

But this shift in the Justice Department’s stance doubles down on stripping away all the protections that were a hallmark of the landmark heath reform law.

The administration’s move didn’t only startle supporters of the law. One former official who worked under Sessions told CNN Monday night that he, too, was surprised by the new position.

Because the case is before one of the most conservative appellate courts in the country, it almost guarantees that the issue will return to the newly solidified conservative Supreme Court at some point. President Barack Obama’s former solicitor general, Donald Verrilli — who once defended the law before the Supreme Court — is now defending the law on behalf of the Democratic-led House.

Most of the coverage and reaction at this point are about the public policy consequences of the ruling being upheld. They’re significant and horrific. But, to the extent O’Connor’s legal analysis is correct, besides the point. Congress doesn’t have the power to do good things that violate the Constitution.

The problem here is twofold.

First, as already noted, the ruling is baffling. While I agree that changes in the tax law indeed obviate the Supreme Court’s controversial ruling in Sebelius, it’s just absurd that it has anything to do with the remainder of the ACA.

Second, the Trump Justice Department, quite rightly, had indicated that it would advocate for enforcing the law with narrow exception. Now, without justification, they have radically changed course. That’s not only weirdly inconsistent but it actually works against their own stated policy aims. Their proposals for negotiating lower prescription drug prices, for example, are rooted in the ObamaCare system they are now working to eliminate.

One hesitates to guess what the new look Supreme Court will do here. Chief Justice Roberts bent over backward to justify the mandate in Sebelius, to the consternation of many conservatives, myself included. Is he going to continue to practice extreme judicial restraint, operating from the premise that the Court should seek ways to rule duly-enacted statutes Constitutional? Or will the replacement of Justice Anthony Kennedy with Brett Kavanaugh pave the way for a more conservative interpretation of the law? We just don’t know at this juncture.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Daryl and his brother Darryl says:

    Got any pre-existing conditions?
    Too fuqing bad.
    Sucks to be you.
    But that red hat looks so nice on your pale white face.

  2. An Interested Party says:

    Hmm…so supposedly the aftermath of the Mueller Report is to be some kind of boon for Trump, particularly in next year’s election…but if this “Obamacare is unconstitutional” goes all the way through, I wonder how the Trump reelection team will respond to Democratic commercials telling people that they lost their health insurance because of Trump…

  3. Kathy says:

    I don’t see why the GOP is intent on rushing towards single payer. I thought that was against their principles.

  4. reid says:

    They’re amazingly single-minded in doing everything they can to destroy ACA. It almost doesn’t make sense, since it’s liable to backfire on them. Seems like most everyone’s moved on and accepted it at this point. Is their Obama hate that strong? (Rhetorical question there.)

  5. Tyrell says:

    @Kathy: Single payer is the last thing we need. I like my plan and insurance company. They should apply this updated version that “if you like your Affordable Health Care plan you can keep it”. The plan has worked fairly well in spite of some glitches. Many people do not qualify for the plan subsidies, yet can’t afford private market plans. There should be some incentives to get the young, healthy, working people to sign up. The mandate did not work well. Most tax preparers knew at least six different ways around it. More choices would help control costs. We now have the choices of: employment plans, Veterans coverage, Medicare, private carrier plans, and the government plan. We need to get more insurance companies back in. Years ago I had the choice of about eight HMO’s.
    Health insurance for children, teens, and young people used to be very cheap. Now it is just the same as adults. What happened there?
    Some people did lose their health plans because of some sort of federal guidelines. To their amazement they found that the Affordable plan cost more and covered less than the plan they had!

    Read: “You Cannot Control Health Care Costs By Pushing Down Prices” (John Goodman, Forbes)

  6. Jay L Gischer says:

    How nice for you Tyrell, that you like your plan. Every single one of my family members has a pre-existing condition, through no fault of their own, and would be unable to obtain insurance if not for Obamacare, or something like it.

    But that’s the modern GOP for you. You are a chief exemplar: “It works for me, so go stuff yourself.”

  7. Kit says:

    At this point, we are merely a cautionary tale for future historians. The courts legislate because the legislature cannot, and it rips the country apart. But when laws are passed, the courts eviscerate them. We are dinosaurs flailing about in a modern world. We are too lumbering, stupid and hidebound to long survive. Really, we can’t fix our broken healthcare without first fixing the Constitution?!

  8. Gustopher says:

    @Tyrell: Do you really know that you like your plan? Or do you just like the cut of it’s jib?

    I guarantee that if you haven’t had a few major medical events, you don’t even know your health care plan. And, I really don’t wish major medical events on people.

  9. Gustopher says:

    I recall the Obama administration did not defend one of the Gays Are Horrible People acts, and it was defended by a third party (who were, in fact, horrible people).

    I assume something similar will happen here, except the third party defending won’t be horrible people?

  10. Jax says:

    Well, at least the Democratic party has something to rally behind now. The most recent polls I’ve seen indicate that Trump’s approval numbers haven’t gone up, even with the Mueller report dropping. There are people who aren’t quite comfortable with M4A yet, but they’re generally happy with Obamacare (with the caveat that they also want Congress to do something to bring down premiums) and Democrats could really pound that drum going into 2020, as well as any proposed cuts to Medicare, Medicaid, and Social Security.

    20 million people losing their health insurance, and who knows how many of the neediest/most vulnerable among us facing even more cuts….if Democrats don’t get on this and run with it, if they keep pounding the Mueller drum, they deserve to have Trump re-elected.

  11. Tyrell says:

    @Jay L Gischer: I don’t know why you are sending that post at me. I said that the Affordable health plan should be tweaked to get those in who can’t afford it. I have also said before that Medicare should be open to anyone who wants it.
    The more people in these plans the quicker prices could come down. The more options we have, the better for all.

  12. DrDaveT says:


    The more people in these plans the quicker prices could come down. The more options we have, the better for all.

    You keep saying this, no matter how many times we correct you. If you want prices to come down, if you want health care to be more affordable, if you want more people to be covered… then you should want FEWER options. “More options” is a big part of what makes healthcare expensive. “More options” = “smaller risk pools”.

  13. Matt says:

    @DrDaveT: Tyrell has been corrected so many times it’s clear he’s immune to reality.

    I somehow upvoted Tyrell when I hit the down thumb…

  14. gVOR08 says:

    There’s reporting tonight that Barr argued they should keep defending the ACA and Trump out of the blue cut his legs out from under him. Why did Barr audition for the job? Who would want it after what Trumpsky did to Sessions? Looks like Barr’s education in the reality of Trump World may be starting.

  15. wr says:

    @Jax: “The most recent polls I’ve seen indicate that Trump’s approval numbers haven’t gone up, even with the Mueller report dropping. ”

    That’s not a surprise. Is there a single person in America whose opinion of Trump has been changed by this summary of a part of a report prepared by an Attorney General who only got the job because he announced in advance what his decision would be?

    Meanwhile, the entire Republican party has decided that criticizing the president is a criminal act that should mean jail time. (Including, of course, the leaders of the “Freedom Caucus.”)

    So this is what they’re going to run on — affordable healthcare is unconstitutional and we’ll throw you in jail if you dare to criticize a Republican president. Pretty sure Nancy Pelosi is not quaking in her stylish yet affordable boots.

  16. gVOR08 says:

    There’s typically a little lag time in polls. It’s silly to be looking at polls a couple days after the event.

  17. Just nutha ignint cracker says:

    @wr: It wouldn’t be likely that people who didn’t support Trump already would be converts because of the report. Such people are either 1) people who don’t vote Republican or 2) people who decided against Trump in 2016 because they considered him incompetent. The outcome of the investigation proves nothing determinative to most voters. Even here, many of the comments address why not to accept the reports of the letter about the report.