The Trump administration has changed its tune on a major health care lawsuit: It now supports striking down the entire Affordable Care Act.
It's a major development that is almost certain to have significant political consequences, even if the legal arguments behind the case remain shaky.
The suit in question begins with the 2017 tax law, which eliminated the health law's individual mandate but left the rest of it in place. A group of red state attorneys general follow up in court by arguing that, because the law was designed to function as a seamless whole, eliminating one major component requires the elimination of the entire rest of the law.
The Trump administration then responded by making the decision not defend the law's pre-existing conditions rules—although it still supported the Medicaid expansion, the subsidies for private coverage on the exchanges, and the rest of the law. It was an unusual decision, because the executive branch almost always defends duly passed laws where possible.
Last December, a Texas judge ruled in favor of the red state AGs, declaring that Obamacare was unconstitutional in its entirety. That ruling was met with heavy criticism, including from some Obamacare critics: The ruling attempted to use statements of congressional intent associated with the original passage of the law in order to invalidate the law as it stands now—essentially ignoring congressional changes, which constitute clear signals of intent, that have happened since.
But last night, the Trump administration, in a one-page filing, said that it now believes the Texas ruling should be affirmed—meaning that the executive branch's position is now that the entire law should be struck down.
The legal argument driving the case remains weak: In post at the Volokh Conspiracy (which is hosted by Reason) Case Western University Law Professor Jonathan Adler, who helped develop an earlier court challenge to the health care law, writes that the decision is "astounding," and that it adopts "a highly strained and implausible approach to severability with little grounding or precedent."
I am no fan of Obamacare, and I was critical of the Obama administration when it went beyond the bounds of the law to implement it. Indeed, that's why I find this new development worrying.
By all appearances, the Trump administration is taking a political position for political purposes, ignoring the strongest legal arguments in the process. It is a selective approach to enforcing the law, in which the executive branch has simply declined to defend a statute it doesn't like that was passed under a rival administration. That decision could have significant implications for future administrations from either party, and they would not be good: Administrations should not be in the business of picking and choosing which laws to enforce or defend.
It remains likely that the case will eventually fail in court. But in the meantime, it will almost certainly have political consequences for Trump and his fellow Republicans.
Arguably the single most effective argument Democrats had in last year's midterms was that they would preserve Obamacare and its preexisting conditions rules. That is was exit polls indicate, and it is also what House Minority Leader Kevin McCarthy (R-Ca.) told fellow House Republicans behind closed doors earlier this year. Heading into next year's election, Democrats will almost certainly attempt to capitalize on the Trump administration's decision not to defend the rest of the law, including the Medicaid expansion that provides health coverage for millions and the subsidies for middle class people buying private insurance on the ACA's exchanges. (Even before last night's filing, Democrats signaled they would make Obamacare a major campaign theme.)
Finally, the filing is further evidence that Republicans have no meaningful, widely shared health care vision of their own: The Trump administration is now saying it supports the legal equivalent of repeal without replace. This wouldn't fix the nation's health care system so much as return it to the pre-Obamacare status quo, which was broken in different ways.