Trump Justice Department sides with court ruling that would invalidate the Affordable Care Act

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Last December, a Republican judge named Reed O’Connor handed down an opinion purporting to strike down the entire Affordable Care Act. The case, Texas v. United States, was brought by several Republican officials who manipulated the process used to assign judges to cases in order to get this case into O’Connor’s courtroom.

O’Connor, a former Republican Capitol Hill staffer, has a history of striking down policies supported by Democrats on highly dubious grounds. His opinion in Texas was no exception.

Nevertheless, on Monday evening, the Trump administration filed a brief letter in the conservative United States Court of Appeals for the Fifth Circuit informing the appeals court that it agrees with O’Connor’s opinion and will file a brief asking the court to repeal Obamacare in its entirety.

As a general rule, the Justice Department has a duty to defend any federal statute challenged in court, regardless of whether the incumbent administration agrees with that statute. The Justice Department will disregard this duty in rare cases, such as when no reasonable arguments can be made in favor of a law. But, in this case, no reasonable argument can be made in favor of O’Connor’s position.

As originally enacted, the Affordable Care Act required most Americans to either carry health insurance or pay slightly higher income taxes. In the 2017 Trump tax law, Congress effectively repealed this requirement by zeroing out the tax penalty for not having insurance.

The premise of O’Connor’s Texas opinion is that, when Congress repealed this one provision of the law, it rendered the rest of Obamacare invalid. O’Connor’s logic is convoluted, but it rests upon two points.

The first point is that the unusual way that Congress repealed the law’s so-called “individual mandate” rendered that mandate unconstitutional. In NFIB v. Sebelius, the Supreme Court upheld the fully operational mandate as a valid exercise of Congress’ power to tax. When Congress zeroed out the mandate, however, it left in place language providing that most Americans “shall” obtain health coverage — even though this language now does absolutely nothing because the consequence for not obtaining insurance is that you have to pay zero dollars.

Nevertheless, O’Connor reasoned that the zeroed-out mandate no longer functions as a tax, and therefore is unconstitutional because it can no longer be upheld as an exercise of Congress’ taxing power.

There are many problems with this argument. Among other things, as the United States House of Representatives argues in a brief defending Obamacare, Congress passes laws that do nothing all the time — one federal law, for example, lays out a set of rules governing how American flags should be treated, but imposes no consequences for violating these rules. These entirely symbolic laws, the House argues, are constitutional because “Congress unquestionably possesses authority to express its views in that non-binding manner.”

But even if O’Connor is right that the impotent mandate is unconstitutional, so what? The mandate does nothing at all. Striking it down means subtracting zero from zero.

But that brings us to the second half of O’Connor’s reasoning.

When a court strikes down part of a broader statute, it often must ask whether other, constitutional provisions of the law must fall along with the unconstitutional provision — an inquiry known as “severability.” Severability is normally a speculative inquiry that asks which hypothetical law Congress would have passed if Congress had known that it lacked the power to enact the invalid provision.

But there’s no need to engage in such speculation in Texas because Congress already answered this question. Congress passed a law that zeroed out the mandate and repealed no other provision of Obamacare. That’s conclusive proof that Congress intended to leave the rest of Obamacare intact.

The Supreme Court, moreover, instructed judges not to cut too deeply into federal laws when they conduct a severability inquiry in Murphy v. National Collegiate Athletic Association. “In order for other . . . provisions to fall,” Murphy held, “it must be ‘evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.’”

So O’Connor didn’t just mangle the severability inquiry, he defied the explicit command of the Supreme Court of the United States.

Nevertheless, there is a very real risk that the Fifth Circuit will back O’Connor (and DOJ’s) play in this case. Eleven of the appeals court’s sixteen judges are Republicans — and many of them are unusually conservative even for a Republican judge. Five of the Fifth Circuit’s members are Trump judges.

So there is a very real risk that the three-judge panel assigned to hear the Texas case will include at least two judges who share O’Connor’s willingness to place ideology before the law. If that happens, the case will almost certainly be heard by the Supreme Court — where the fate of Obamacare is likely to rest once again in Chief Justice John Roberts’ hands.


Reposted from ThinkProgress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Posted In: Allied Approaches

Union Matters

Get to Know AFL-CIO's Affiliates: National Association of Letter Carriers

From the AFL-CIO

Next up in our series that takes a deeper look at each of our affiliates is the National Association of Letter Carriers.

Name of Union: National Association of Letter Carriers (NALC)

Mission: To unite fraternally all city letter carriers employed by the U.S. Postal Service for their mutual benefit; to obtain and secure rights as employees of the USPS and to strive at all times to promote the safety and the welfare of every member; to strive for the constant improvement of the Postal Service; and for other purposes. NALC is a single-craft union and is the sole collective-bargaining agent for city letter carriers.

Current Leadership of Union: Fredric V. Rolando serves as president of NALC, after being sworn in as the union's 18th president in 2009. Rolando began his career as a letter carrier in 1978 in South Miami before moving to Sarasota in 1984. He was elected president of Branch 2148 in 1988 and served in that role until 1999. In the ensuing years, he worked in various roles for NALC before winning his election as a national officer in 2002, when he was elected director of city delivery. In 2006, he won election as executive vice president. Rolando was re-elected as NALC president in 2010, 2014 and 2018.

Brian Renfroe serves as executive vice president, Lew Drass as vice president, Nicole Rhine as secretary-treasurer, Paul Barner as assistant secretary-treasurer, Christopher Jackson as director of city delivery, Manuel L. Peralta Jr. as director of safety and health, Dan Toth as director of retired members, Stephanie Stewart as director of the Health Benefit Plan and James W. “Jim” Yates as director of life insurance.

Number of Members: 291,000 active and retired letter carriers.

Members Work As: City letter carriers.

Industries Represented: The United States Postal Service.

History: In 1794, the first letter carriers were appointed by Congress as the implementation of the new U.S. Constitution was being put into effect. By the time of the Civil War, free delivery of city mail was established and letter carriers successfully concluded a campaign for the eight-hour workday in 1888. The next year, letter carriers came together in Milwaukee and the National Association of Letter Carriers was formed.

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There is Dignity in All Work

There is Dignity in All Work