The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
After a federal district court judge in Texas held that the entire Affordable Care Act must be struck down because Congress zeroed out the penalty for failing to purchase health insurance, Attorney General William Barr and HHS Secretary Alex Azar reportedly opposed defending the decision on appeal. They apparently recognized that taking such a position would cut against longstanding Justice Department positions and require embracing weak and implausible legal theories. Nonetheless, they were overruled by the White House.
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. . . .
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. . . .
Longtime readers know that I am no fan of the ACA, but I am no fan of this lawsuit either. Indeed, like many other ACA critics, I find the arguments made by the plaintiff states to be quite poor, and I was disappointed to see them embraced by a district court judge and given further credence in a divided opinion of the U.S. Court of Appeals for the Fifth Circuit. I also expect to participate in an amicus brief on the issue of severability before the Supreme Court.
[Update: CNN reports the Trump Administration will maintain its position in this case:
"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.
For those interested, here are my prior posts (and other articles) on this case:
- The Clever Red State Lawsuit Against the Individual Mandate, and the Justice Department's Disappointing Response—6/11/18
- Strange Bedfellows Join on Severability in the Latest ACA Case—6/14/18
- How Do the States Have Standing to Challenge an Unenforced and Unenforceable Mandate?—6/15/18
- An Obamacare Case So Wrong It Has Provoked a Bipartisan Outcry (w/ Abbe Gluck), New York Times, 6/19/18
- Meanwhile, in a Texas Courtroom, Is the ACA in Trouble?—9/6/18
- BREAKING: District Court Judge in Texas Holds ACA Is Unlawful—12/14/18
- What the Lawless Obamacare Ruling Means (w/ Abbe Gluck), New York Times, 12/15/18
- Understanding Why Judge O'Connor Was Wrong to Conclude Plaintiffs Had Standing to Challenge the Penalty-Less Individual Mandate—12/21/18
- Court Stays Ruling Invalidating the Affordable Care Act Pending Appeal—12/31/18
- Justice Department Revises Its Position in Texas ACA Case—3/25/19
- Does Anyone Support DOJ's Position in the Texas ACA Case?—3/29/19
- Another Round of Strange Bedfellows on Severability in Texas v. U.S.—4/1/19
- Fifth Circuit Adds New Wrinkle to Texas ACA Case—6/26/19
- The ACA Cases Continue—7/1/19
- On the Eve of Oral Argument in Texas v. U.S.—7/8/19
- Where Is the Fifth Circuit's Opinion in the Texas ACA Case? [Updated]—12/16/19
- BREAKING: Fifth Circuit Declares Individual Mandate Unconstitutional, Punts on Whether Rest of ACA Must Fall (Updated)—12/18/19
- Can Courts Consider Severability Before Other Questions?—1/22/20
- Red State Challenge to Affordable Care Act Goes to SCOTUS (But the Arguments Remain Incredibly Weak) (Updated)—3/2/20
For the contrary views of this case, see the various posts by my co-blogger Josh Blackman.