The constitutionality of Obamacare is under challenge once again. Six years ago, the Supreme Court held that the federal government does not have the power to order people to buy health insurance, but does have the power to impose a tax on those without health insurance. The ruling saved Obamacare.
However, the tax bill Congress passed last year eliminates the tax penalty contained in Obamacare. Thus, Texas now argues that the individual mandate to buy health insurance lacks a constitutional basis.
Yesterday, the Trump-Sessions Justice Department announced that it will not defend the constitutionality of Obamacare in the Texas litigation. This doesn’t mean Obamacare won’t be defended in court. A group of 17 states, all led by Democrats, will argue that the individual mandate remains constitutional.
In its letter to the Texas court hearing the case, the administration argued that some provisions of Obamacare — e.g., the ban on refusing coverage to people with pre-existing conditions — can survive because they are legally distinct from the individual mandate. However, it insists that the individual mandate, which is a key to subsidizing things like the ban on refusing coverage, is unconstitutional.
The Washington Post calls the administration’s unwillingness to defend the individual mandate “a dramatic break from the executive branch’s tradition of arguing to uphold existing statutes.” There is such a tradition. However, the Post neglects to inform its readers that the Obama administration refused to defend the constitutionality of the Defense of Marriage Act (DOMA). ( Axios makes this point, as does Politico, but not the Post).
At the time, the Post’s editors were somewhat critical of the Obama administration’s decision not to defend DOMA. They asked: “What would [Obama] say, for example, if a conservative Republican administration in the future attempted to sabotage the Obama health-care initiative by refusing to defend it against constitutional attack?”
My guess is that Obama would (will) ignore his failure to defend DOMA. Just as the Post is doing.
The Post quotes Nicholas Bagley, a University of Michigan law professor, who moans:
If the Justice Department can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books. That’s not a rule of law I recognize. That’s a rule by whim. And it scares me.
But it’s the courts, not the executive, that determine which laws remain on the books. Refusing to defend the constitutionality of a law in court does not remove it from the books. Only if the administration refuses to follow that law would the professor have a legitimate fear for the rule of law.
I agree that there should be a strong presumption in favor of the Justice Department defending the laws Congress passes and the president (at the time of passage) signs. This should be true even for laws like Obamacare that receive not one vote in the Senate from a member of the opposing party (this was not the case with DOMA, which passed with overwhelming bipartisan support and was signed into law Bill Clinton).
Maybe that presumption should hold in this case. Perhaps the administration should try to reconcile the tax bill Congress enacted with the Supreme Court’s 2016 decision upholding the individual mandate as a tax, and only on that basis. I take no position on that question here. I write only to inform our readers of the administration’s stance and to note the bias of the Washington Post’s report.