The Trump Administration Did Not Support The Total Invalidation of the "Entire" ACA before the 5th Circuit

But the nuanced legal position is politically irrelevant.

|The Volokh Conspiracy |

CNN reports that change may be afoot in the Obamacare litigation:

Attorney General William Barr made a last-minute push Monday to persuade the administration to modify its position in the Obamacare dispute that will be heard at the Supreme Court this fall, arguing that the administration should pull back from its insistence that the entire law be struck down.
With a Wednesday deadline to make any alterations to its argument looming, Barr made his case in a room with Vice President Mike Pence, White House counsel Pat Cipollone, members of the Domestic Policy Council, press secretary Kayleigh McEnany and several other officials. The meeting ended without a decision and it was not immediately not clear if any shift in the Trump administration's position will emerge.
Barr and other top advisers have argued against the hard-line position for some time, warning it could have major political implications if the comprehensive health care law appears in jeopardy as voters head to the polls in November.
According to four sources familiar with the meeting, Barr argued for modifying the administration's current stance to preserve parts of the law, rather than fully back the lawsuit filed by a group of Republican states. As it stands now, the Trump administration's position seeks to invalidate the entire Affordable Care Act, signed by President Barack Obama in 2010 and commonly known as Obamacare.

DOJ did not argue that the "entire" ACA must be invalidated. Nor did the Fifth Circuit reach that conclusion. Rather, both the federal government and the court of appeals advanced, quietly, Justice Thomas's position on severability from Murphy v. NCAA. This test will only declare unconstitutional the unseverable provisions of the law that actually injure the plaintiff. And a remand would be in order to determine, in the first instance, what provisions of the law meet that test.

Alas, this nuanced legal position is politically irrelevant. (Co-blogger Jon Adler flagged this story earlier.)

The SG will have to make a decision soon. Bottom-side briefs opposing the judgment below are due this week. Top-side briefs supporting the judgment below are due in June. If the SG does flip positions, then neither party would actually defend the Fifth Circuit's judgment. Texas will still seek complete invalidation. I'll have more to say about this issue in due course.

One final point. In March, I considered whether the ACA case would be heard during the October 2020 sitting, before the election. Due to the Coronavirus, the Court rescheduled ten cases from the current term till next term. According to the Supreme Court's calendar for the October 2020 Term, there are six possible oral argument dates prior to election day: October 5, 6, 7, 13, 14, and November 2. Assuming each case is one hour long, the Court can hear twelve hours of argument time before the election. If all ten cases from this term are heard in October,  there will only be two hours for non-rescheduled cases before the election. Will the ACA case be one of those decisions? Of course, the Court can add afternoon sittings to catch up.

Update (5/6/20): President Trump said the administration would sick with Texas:

"We're not doing anything. In other words, we're staying with the group, with Texas and the group," Trump told reporters in the Oval Office.

As it stands now, the Trump administration position fully backs the lawsuit filed by a group of Republican states seeking to invalidate the entire Affordable Care Act.

"Obamacare is a disaster, but we've run it very well, and we've made it barely acceptable," Trump said. "It was a disaster under President Obama, and it's very bad health care. What we want to do is terminate it and give health care. We'll have great health care, including preexisting conditions."

Trump said the administration had "already pretty much killed it because we got rid of the individual mandate."

"We want to terminate health care for—under Obamacare because it's bad, and we're replacing it with a great health care at far less money and it includes preexisting conditions," he said. The White House has yet to offer an alternative to the 2010 law.

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  1. Trump supports Obamacare because the Kushner family is heavily invested in the ACA Exchanges subsidies. This is all about political posturing to appeal to gullible Trump voters who having raging cases of Obama Derangement Syndrome.

    1. Nice glib statement, but much too general to mean anything. You sound like all those straw clutchers who find that some researcher owns 100 shares of tobacco stock and scream it invalidates all their research.

      What exactly does “heavily invested” mean? The very fact you have no figures makes me guess it’s less than 1%. The Trumps have a lot of money, and I bet it would be hard to find any sector of the economy they can’t be linked to. I doubt very much that their investment in ACA Exchange subsidies is anywhere near enough to control their reaction to this piddling lawsuit.

    2. What does it mean to be “heavily invested in the ACA Exchanges subsidies.”

      I wasn’t aware that there was anything to invest in.

      1. The Kushner family created Oscar Health insurance specifically to take advantage of the ACA subsidies.

  2. Sebastian, Are you claiming that the only reason anyone would oppose the ACA was because they have a “raging case of ODS”? So if we opposed the Medicare expansion when Bush was President, opposed socialized medicine when Clinton was President, opposed socialized medicine in Mass when Romney was governor, opposed socialized medicine in Oregon when whoever was in charge, it all comes from ODS?

    Or could you admit that some people think that socialized medicine is a bad idea, have evidence that we believe supports our view from the many countries which have socialized medicine, and then maybe have a rational argument about the merits.

    Or I suppose you could continue to make ad hominem attacks about the motivation and intelligence of those with whom you disagree.

    1. I think people can oppose the ACA without having ODS.

      OTOH, opposing it on the grounds that it is “socialized medicine” is sort of silly. First, that term is pretty meaningless. Second, to the extent it has a meaning it doesn’t describe ACA, which essentially is a regulation of health insurance.

      1. Except Obamacare is very popular in Trump’s best state of West Virginia except they don’t believe the health insurance they get is Obamacare—they are under the impression it is Manchincare or Byrdcare. So in WV Obamacare is unpopular but if you phrase it a different way without “Obama” then the program is very popular.

      2. “which essentially is a regulation of health insurance.”

        Which is essentially an entitlement program the insurance industry is compelled to run on behalf of the government via regulation of health insurance.

        It’s the same as though regulations of grocery stores had been used to force them to provide below cost groceries to poor people; The ACA compels insurance companies to provide health insurance at below cost to select groups of people.

        1. Whatever, Brett. That doesn’t make it “socialized medicine.”

          1. Well, it does, indirectly, but it’s more of a fascist economic model.

            The ACA was expected to eventually result in socialized medicine, by causing the market in health insurance to break down. Too many people like their insurance for socializing medicine to be attractive, so Democrats set out to ruin their insurance.

            Basically, you wanted to remodel the house, but the owners liked it the way it was. So you set it on fire in order to remove their objections.

            1. Lol

        2. Lol, Kushner started a business out of charity and the goodness of his heart!!! You are hilarious! Trump has broken you.

    2. In America we fund a majority of health care spending with what amounts to a VAT with the spending controlled by employers and the states that heavily regulate health care spending. So our health care system was designed by New Deal Democrats and the UAW and it has produced the best health care system in the world. So every product and service Americans purchase includes someone else’s health care costs…which is great unless you don’t get health insurance through an employer. In that instance you get hit with the VAT but don’t get health care costs covered by the VAT spending. Obamacare merely fixed this clearly unfair tax situation by providing subsidies for the minority of people in the individual health insurance market along with giving people in the individual health insurance market similar benefits as those with employer provided health insurance.

    3. I would just say simply that you don’t want most people to get health care for ideological reasons. That is a commonly held conservative position. “Don’t get sick, but if you do die quickly.” This is what millions believe and support.

  3. Josh,
    For those of use who do not do this type of appellate law: Can you explain briefly what a bottom-side brief is and what a top-side brief is? (Google was not helpful, here.)

    1. It means briefs supporting the petitioners (i.e. the people on the “top side” of the case caption) and the respondents (on the “bottom side”), respectively.

      Of course, since there are companion cases with reciprocal captions here, I’m not sure the terminology is entirely useful, and if I were going to choose sides, I probably would have done it the other way.

      1. Much thanks. I did appellate law in California (in a very narrow field) for years and years, and never encountered those terms of art.

        1. Neither have in over 100 cases.

  4. This again? The government’s brief is quite clear that they think the entire ACA is invalid. The “nuance” about limiting relief to the portions that injure the plaintiffs makes zero practical difference. Assuming the Court adopts the government’s position in whole, the Court will remand the case so that the district court can enter a declaratory judgment that declares invalid massive swaths of the ACA, leaving only “ancillary provisions” untouched. The particular plaintiffs seeking relief just so happen to be states, so limiting the declaratory judgment to them, will mean most of the ACA is declared invalid for a lot of the country.

    Now, assuming the federal government does not want to be subject to an injunction down the line in those states, which O’Connor would only be too happy to issue, what are they going to do? They’re going to stop enforcing the main parts of ACA. The exchanges will be shut down, any states that have expanded Medicaid will lose that funding, and insurances companies will never have to abide by guarantee issue

    But what about the rest of the country? Do you think the federal government is going to continue enforcing the major portions of ACA in the states that didn’t sue when there is a Supreme Court opinion saying most of the law is invalid? Of course not.

    Even assuming they do continue enforcing it, it won’t take long for some plaintiff to run to court, with a SCOTUS precedent in hand, seeking a declaratory judgment or an injunction to stop enforcement of ACA. The lower courts will have no choice but to invalidate the ACA every time a plaintiff shows up. And with the theory on standing that is being used, that can be anyone subject to the mandate.

    The fact that we still will have calorie counts on menus and that immediate relief will be technically limited in scope if the government’s approach prevails, is really a fig leaf trying to cover the practical effect of what they’re asking the Court to do. Nuance is important and good, but the existence of nuanced technicalities does not mean people need to be deliberately obtuse about the endgame here.

    1. As time goes on more red states are expanding Medicaid because it is so stupid not to. Basically by not expanding Medicaid a state is denying its hospitals and doctors a new revenue source. So the primary beneficiaries of the ACA Medicaid expansion are doctors and hospitals and not the actual patients that get crappy Medicaid.

      1. more red states are expanding Medicaid because it is so stupid not to.

        Yes it is. But hey, gotta show Obama who’s boss.

        the primary beneficiaries of the ACA Medicaid expansion are doctors and hospitals and not the actual patients that get crappy Medicaid.

        You mean Medicaid is worse than nothing?

        You mean the patients who get treated don’t benefit?

        You mean people not on Medicaid who’s local hospitals stay open don’t benefit?

        1. The data suggests the people covered under the Medicaid expansion were getting treated and the doctors simply didn’t expect to get paid.

          1. What data? You’re going to have to make a pretty strong case. Ar eyou saying that cancer patients, for example, got their chemotherapy for free?

            And even if true, hospitals that don’t get paid tend to close, and doctors who don’t get paid tend to leave, so then nobody in town, rich or poor, gets treated.

            1. Life expectancy fell after Obamacare was implemented. I agree with your second paragraph—it’s dumb to not expand Medicaid because it hurts doctors and hospitals in the states that refuse to expand.

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