Attorney General William Barr was supposed to be a voice of reason in the Trump administration. An old Washington hand, he had the stature and the backbone to protect the Justice Department from a White House that often seems to disdain the rule of law.
Turns out it isn’t so.
In a stunning two-sentence letter to a federal appeals court, the Justice Department announced on Monday that it would now seek the invalidation of the entire Affordable Care Act — every last one of its thousands of provisions.
The irresponsibility of this new legal position is hard to overstate. It’s a shocking dereliction of the Justice Department’s duty, embraced by Republican and Democratic administrations alike, to defend acts of Congress if any plausible argument can be made in their defense.
Nor is the Affordable Care Act some minor statute that can be shoved aside without disruption. It is now part of the basic plumbing of the American health care system. It guarantees protections for people with pre-existing medical conditions. It expanded Medicaid to cover 12.6 million more people, and it offers crucial protections to the 156 million Americans who get insurance through employers.
Beyond that, the law forces insurers to cover preventive care and contraception without charge; changed how hospitals and physicians bill for their services; requires fast-food restaurants to post calorie counts; cut hundreds of billions of dollars of Medicare spending; imposed hundreds of billions of dollars in taxes; and much, much more.
Unceremoniously ripping up the law would inflict untold harm on the health care system — and on all Americans who depend on it. Yet the Trump administration has now committed itself to doing just that.
The letter was submitted in a pending case, brought by a group of red states, in which a federal judge in Texas ruled that no part of the Affordable Care Act could stand. The judge reasoned that Congress created a constitutional problem when, in its big tax reform bill in 2017, it eliminated the financial penalty for going without insurance.
Because of that purported constitutional defect, the court held, the entire law had to fall. The ruling was indefensible: Legal scholars across the board criticized it as outrageous and predicted it would almost surely fall upon appeal.
Indeed, even the Trump administration couldn’t bring itself to argue that the entire law should be scrapped. It agreed there was a constitutional problem, but said that the right remedy was to keep most of the law in place. Only those parts requiring private insurers to sell coverage at the same price to healthy and sick people alike — the protections for people with pre-existing conditions — would have to be struck.
That, too, was an outrageous position. It flouted the Justice Department’s duty to defend, a solemn duty, and one that goes to the heart of the rule of law. Without it, the sitting administration could pick which laws it wanted to defend in the courts and which it wanted to abandon. Laws could rise or fall based on nothing more than partisan disagreement. That’s inconsistent with a constitutional system that assigns to Congress — not the president — the power to legislate.
And so, at the confirmation hearing on his nomination to become attorney general, Mr. Barr said that he would review the Justice Department’s position in the Texas lawsuit. Apparently he did just that — but whatever opposition he offered fell short. It’s as if Mr. Trump said to his previous attorney general, Jeff Sessions: “You thought your position was crazy? Hold my beer.”
Does the administration really think that the very position it advanced just months ago is so untenable that it must now adopt one that is even more extreme?
The shift in legal position won’t make much of a difference in the lawsuit itself. Because a group of blue states has intervened, the appeals court will hear a full-throated defense of the law. Most observers expect the court to uphold the Affordable Care Act; if so, the Supreme Court may choose not to hear the case.
But the Trump administration has signaled loud and clear that its campaign against Obamacare is not over; that it will stop at nothing to achieve in court what it could not achieve in Congress; and that it doesn’t care how many people are hurt if the Affordable Care Act is undone.
It has also put health care back at the center of the political conversation. Republicans already took a beating on the issue in the fall midterm elections, and Democrats, who released a bill in the House to strengthen the Affordable Care Act, want to keep running on it. They’ll be sure to remind voters of the Trump administration’s zealous commitment to taking away their health care.
Along the way, the Justice Department has trashed the duty to defend. That’s not to be taken lightly. The duty is a close cousin to the president’s constitutional duty to enforce the law. If the Justice Department really thinks that Obamacare is so blatantly unconstitutional that it can’t be defended, that implies that the president is violating the Constitution whenever he applies it.
It’s not hard to see that as an incipient justification for refusing to enforce any law that the president believes to be unconstitutional, however ridiculous or partisan that belief might be. Hopefully it doesn’t come to that. But the failure to defend the Affordable Care Act is an ominous sign to anyone who cares about the rule of law.