Justice Department drops out of latest Obamacare lawsuit

Which of course was filed in Texas by our felonious Attorney General.

It’s constitutional – deal with it

The Trump administration said Thursday night that it will not defend the Affordable Care Act against the latest legal challenge to its constitutionality — a dramatic break from the executive branch’s tradition of arguing to uphold existing statutes and a land mine for health insurance changes the ACA brought about.

In a brief filed in a Texas federal court and an accompanying letter to the House and Senate leaders of both parties, the Justice Department agrees in large part with the 20 Republican-led states that brought the suit. They contend that the ACA provision requiring most Americans to carry health insurance soon will no longer be constitutional and that, as a result, consumer insurance protections under the law will not be valid, either.

The three-page letter from Attorney General Jeff Sessions begins by saying that Justice adopted its position “with the approval of the President of the United States.” The letter acknowledges that the decision not to defend an existing law deviates from history but contends that it is not unprecedented.

The bold swipe at the ACA, a Republican whipping post since its 2010 passage, does not immediately affect any of its provisions. But it puts the law on far more wobbly legal footing in the case, which is being heard by a GOP-appointed judge who has in other recent cases ruled against more minor aspects.

The administration does not go as far as the Texas attorney general and his counterparts. In their suit, lodged in February in the U.S. District Court for the Northern District of Texas, they argue that the entire law is now invalid.

By contrast, the Justice brief and letter say many other aspects of the law can survive because they can be considered legally distinct from the insurance mandate and such consumer protections as a ban on charging more or refusing coverage to people with preexisting medical conditions.


In an unusual filing just before 6 p.m. Thursday, when the brief was due, the three career Justice attorneys involved in the case — Joel McElvain, Eric Beckenhauer and Rebecca Kopplin — withdrew.

The department’s argument, if adopted by U.S. District Judge Reed O’Connor, “would be breathtaking in its effect,’ said Timothy Jost, a retired Washington and Lee law professor who follows such litigation closely. “Of all of the actions the Trump administration has taken to undermine individual insurance markets, this may be the most destabilizing. . . . [If] I’m an insurer, I don’t know what I am supposed to do or not.”

Jost, an ACA supporter, noted that the administration’s decision not to defend the law comes during the season when participating insurers must file their rates for next year with state regulators. It raises new questions about whether insurers still will be required to charge the same prices to all customers, healthy or sick.

And Topher Spiro, vice president of health policy at the liberal Center for American Progress, said the administration’s legal argument contradicts promises by Trump that he would not tamper with the ACA’s protections for people with preexisting medical conditions.

University of Michigan law professor Nicholas Bagley, another ACA defender, went even further in a blog post. “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,” he wrote. “That’s not a rule of law I recognize. That’s a rule by whim. And it scares me.”

See here for the background. The fact that three Justice Department attorneys withdrew from the case rather than be party to this decision is what really stands out to me. Those are the people who believe the most strongly in the Justice Department’s mission. That’s about as loud a statement as they could make.

There’s a coalition of states that was granted standing to the litigation, and they filed a brief in response, so it’s not like the ACA is on its own in the courtroom. But if you’re someone with a pre-existing condition, which is one of the things that is at stake here, or you know someone who has one – and there are some 130 million people who fall into that bucket – then this is what this action means to you. If you need health insurance, the Trump administration and its enablers like Ken Paxton are working to take it away from you. I don’t know about you, but I want to hear a lot more about this between now and Election Day. Washington Monthly, Daily Kos, ThinkProgress, Mother Jones, the Observer, and the Trib have more.

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58 Responses to Justice Department drops out of latest Obamacare lawsuit

  1. Flypusher says:

    Well looky here, the Senate shows a bit of residual spine:


    Maybe the GOP Senators will soften that stance if Donny2Scoops throws a few kickbacks in their general direction.

  2. Bill Daniels says:


    Local Pearland city council election that lots of outside money poured into. I held my nose and voted for the slightly lesser of two evils, Adrian Hernandez, the progressive, gay, Latino. When you see his opponent, though, it ought to be super obvious why I even bothered make a Hobson’s Choice like that.


    Here’s one of many Trump quotes on trade:

    ““I don’t blame them, I don’t blame the heads of these countries for taking advantage of us, I blame past Presidents and past leaders of our country,” Trump said.”

    Them = the EU, Japan, China, etc.

    Trump entered office talking about unfair trade deals. He was even deferential, blaming this on the US, NOT on the other countries. He publicly stated he wanted these trade deals renegotiated, but it seems nothing happened until he cranked up the volume. That’s asking nicely IMHO.

  3. C.L. says:

    As long as we have a do nothing Congress, The Cheeto is going to say and do whatever he wants. Zero checks and zero balances.

    C’mon November !

  4. Manny Barrera says:

    Bill you do know that the US has a surplus in trade with Canada, don’t you?

  5. Bill Daniels says:


    Uh, what?

    https ://www.census.gov/foreign-trade/balance/c1220.html

    I trust you’ll accept a right wing source like the US Census? (just close the spaces after the https)

  6. Ross says:

    @Bill, the census numbers don’t include trade in services, where there’s a large surplus for the US. Here’s another .gov site with more details https://ustr.gov/countries-regions/americas/canada

  7. Manny Barrera says:

    Thank you Ross, I was going to point that out to Bill.

  8. Bill Daniels says:

    Ross and Manny,

    That was a good read, thanks.

Comments are closed.