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Obamacare Critics and Defenders Team Up Against the Trump Administration’s Refusal to Defend the Health Law in Court

The DOJ's argument for striking down the health law's preexisting conditions rules is weak.

Jay Mallin/ZUMA Press/NewscomJay Mallin/ZUMA Press/NewscomLast week, in response to a legal challenge filed by Texas and a group of conservatives states, the Trump administration took an unusual step by announcing that it would not defend Obamacare in court. Instead, the Trump administration took the position that the health law's was unconstitutional, and that its preexisting conditions regulations should be struck down.

The federal government's suit has drawn rebuke from some unlikely quarters. An attorney with 20 years of experience at the Justice Department resigned this week as a result of the administration's position. Sen. Lamar Alexander (R-Tenn.) said it was "as far-fetched a legal argument as I think I've ever heard." Senate Majority Leader Mitch McConnell distanced his party from the argument, saying that "everyone" in the Senate favored maintaining coverage for people with preexisting conditions.

Even Health and Human Services (HHS) Sec. Alex Azar, who signed the brief in question, described it as a "constitutional and legal position, not a policy position."

It doesn't appear to be much of one.

Among the more unusual responses to the administration's argument came today in the form a brief filed by five academic experts with wildly divergent views about Obamacare. The brief is signed by Jonathan Adler, Nicholas Bagley, Abbe Gluck, Ilya Somin, and Kevin Walsh. Bagley and Gluck have both defended the health law's legality in the past. Walsh has published several analyses of the legal arguments surrounding Obamacare. But Adler and Somin, notably, are libertarian-leaning law professors who have been quite critical of the health law over the years. (Both are also contributors to the Volokh Conspiracy, which is published at Reason.com.)

The opening of the brief stresses that the signers have spent the last several years disagreeing with each other, in some cases quite forcefully, about the legal and constitutional merits of the health law. The brief takes no position on the mandate itself. But in this case, they all agree that the federal government's argument for striking down the law's preexisting rules is, legally speaking, pretty terrible.

Understanding the brief requires a little bit of background. In 2012, the Supreme Court ruled that although Obamacare's mandate was unconstitutional when viewed as a purchase requirement or economic command, it could stand because it raised revenue and therefore functioned as a tax. But last year, as part of tax reform legislation, Congress eliminated the penalty for not complying with Obamacare's individual mandate. The mandate remained on the books, but for all practical purposes it had been repealed. And it no longer raised any revenue.

As a result, a group of conservative states, led by Texas, challenged the legality of the (now unenforceable) mandate, and further argued that because it is the centerpiece of the health law, all of Obamacare should be struck down.

This is an argument about what's known as "severability" — whether the remaining parts of a law should be struck down if a court finds one provision to be illegal.

The Trump administration's argument does not go quite as far as the states. It agrees that the mandate is now unconstitutional, and takes the position that although much of the law, including the Medicaid expansion and private insurance subsidies, can stand, the preexisting conditions rules should be tossed along with the mandate, because the mandate and the preexisting conditions rules are not severable. To back up its argument, the administration cites findings associated with the statute of Obamacare (that were also cited by the Obama administration in court) declaring that the mandate and the preexisting conditions rules are a bundle that should not be separated.

For critics of Obamacare, there is something naturally appealing about this argument: It uses the text of the health law, and the Supreme Court's decision to uphold it, to attempt to knock it down. I have been open to arguments along these lines under the Obama administration, and I think they made sense at the time.

The problem, as the new brief points out, is that determining severability is about determining congressional intent. And the current Congress has made its position on the matter quite apparent. Often, this requires some sort of guessing. But at this point, we know exactly what Congress thinks about the law it chose to amend, because it very clearly chose to eliminate the mandate penalty while leaving the preexisting conditions rules in place. That is about as clear a statement of intent as you can ever imagine from Congress.

The brief argues that the administration's argument relies on "time shifting" to make its case, and that the administration's case effectively gets severability backward by "[disregarding] the clearly expressed intent of Congress and seek judicial invalidation of statutory provisions that Congress chose to leave intact."

The findings about severability that the administration cites to back up its arguments about the preexisting were made by a different Congress, prior to the elimination of the mandate penalty and other alterations to the law. They were made in the context of what is now, essentially, a different law. They don't apply.

I have been a critic of Obamacare for years, and I continue to believe there are many problems with the law. The preexisting conditions rules, while popular, distort the individual market and have contributed to rising premiums in the exchanges. (The popularity of those rules, of course, is one reason why Republicans haven't touched them, and why GOP officials are distancing themselves from the policy implications of their argument.) But critics of the health law do themselves no favors by signing on to a fundamentally weak legal challenge like this.

The bigger problem with this case is that it has the potential to serve as a substitute for a policy agenda. Republicans still need a broad health policy vision that goes beyond simply attacking Obamacare. But as long as they are basing their hopes on a legal manuever as poorly thought out as this one, that's not something we're likely to see.

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  • damikesc||

    Republicans still need a broad health policy vision that goes beyond simply attacking Obamacare.

    I do not see WHY they do.

    Government health policies have been a shit show for decades.

    No policy would have been better than their prior proposals.

  • Rhywun||

    If you choose not to have a broad health policy vision, you still have made a choice.

  • Sevo||

    If you choose not to vote, you have 'voted'; agreed.

  • chemjeff radical individualist||

    I do not see WHY they do.

    Because they clearly aren't libertarians on the issue of health care.

    They do favor government intrusion into the health care market, it's just that there is no clear idea how far or in what context they do favor it.

  • NotAnotherSkippy||

    So they're no different than Suderman then.

  • Jerryskids||

    That's the basic attack on libertarianism right there - you criticize a government program and suddenly it's incumbent on you to propose an alternative government program that works better. Obamacare promised us a perpetual motion machine and maybe it hasn't worked as advertised, but all you're doing is whining and complaining and I don't see you coming up with a plan for a perpetual motion machine, smart guy.

  • Elston G||

    In regards to your last two assertions, what "government health policies" are you talking about?

    Why the platitudes and no specifics?

    I have tried to get folks to speak to the history of Healthcare in America for years, and thanks to Obamacare even the freaking president of the United States is saying, "who knew it could be so complicated?"

  • Just Say'n||

    "the Trump administration took an unusual step by announcing that it would not defend Obamacare in court."

    Is "unusual" being used here as a synonym for "actually, the last administration did this several times"?

    www.politico.com/story/2012/06.....aws-077486

  • Just Say'n||

    "Don't blame me, I just woke up on January 2017"

    But, are you woke af?

  • Just Say'n||

    Reason never had a problem when the previous administration wouldn't defend DOMA in court or enforce immigration and drug laws. Which is fair if you thought those were unjust and likely unconstitutional laws to begin with.

    So, is the takeaway here that Reason thinks that the ACA is on rock hard solid legal ground? It's pretty obvious that Suderman is a supporter of Obamacare or, at least, doesn't want it to be altered.

  • BestUsedCarSales||

    He does seem to be. Either that, or he's just the most extreme anti-Trump person on this site. Either way, I think I tend to disagree with him.

  • Taxation Is Theft||

    Well said, gentlemen. Mr. Suderman appears to care more about having fashionable opinions to impress those in the New York Times and the rest of the liberally-dominated media.

  • Elston G||

    The "take-away" isn't anything of the sort.
    Did you even read the piece?
    The takeaway is a Trump's justice department legal case is weaker than shit.
    Doesn't seem you even read the piece, but actually seem paranoid that someone, and God forbid a writer at Reason might think the ACA , which is still the law of the land in America has some solid legal ground.

    How about if I say the ACA has very solid legal ground, and you and you're thinking,if you can call Hannity platitudes and talking points your own thinking, have zero legitimacy.

    Yeah you folks are so cultish and intellectually dishonest it's fucking weird.

  • Just Say'n||

    Cool story. Now do immigration law and DOMA. Which laws can be avoided and are likely constitutional seems to be dictated by something far removed from anything related to limited government principles.

  • Elston G||

    What the fuck is "limited government principles?"

  • Just Say'n||

    That about sums it up

  • Elston G||

    We the People ARE the government.
    Who do you think sets the rules in a democracy?
    Corporate elites?

  • Elston G||

    Pre-existing conditions issue was the whole reason for having Obamacare?

    Nope.
    Although it is the reason the entitled skim industry knew it could lose the -Trust

  • Elston G||

    Lose their gravy train, if they lost the exemption from Anti-Trust legislation and prosecution. The Obama Administration swung a big bat at the Middle Men skim operators heads and they blinked.
    Another case where Democrats favor working folks over the donor class.

  • Mark22||

    So, is the takeaway here that Reason thinks that the ACA is on rock hard solid legal ground? It's pretty obvious that Suderman is a supporter of Obamacare or, at least, doesn't want it to be altered.

    Forcing people to enter into contracts they don't want to enter and redistribute money to pay for healthcare: it's the New Libertarianism!

  • Elston G||

    The ppaca didn't "force"anyone into a contract they didn't want. They adopted right-wing Heritage Foundation free Rider solution for anyone that didn't want to enter into a contract. The Free Riders weren't going to be able to socialize their healthcare costs on to the rest of us when they wound up in the ER in a coma.

    How is it you don't know this stuff?

  • EscherEnigma||

    That had me scratching my head too. Every administration for decades now has wound up not defending some law or other.

    I guess he could have meant "unusual step" in that it only happens every few years, rather then every month, but this feels a bit overly generous.

    And it's not like it's even needed commentary. "The Trump admin had announced it won't defend the law, but it's legal argument is shitty" would have been perfectly understandable.

  • Fist of Etiquette||

    How many branches have to get together to touch preexisting conditions? The tax that's no longer a tax meant to pay for a huge market distortion, and the distortion remains. It's like everyone in Washington wants the health insurance industry to collapse into single payer. What a mess.

  • HGW xx/7||

    I think that's the plan. Fabians rejoice!

  • Paloma||

    The worst thing about Obama care was the unholy alliance with insurance companies. Take this awful system out behind the barn and shoot it already.

  • Elston G||

    You mean the alliance where the middle men skim operators can't discriminate based on pre existing conditions?
    Or the alliance where the money changers can only skim 20% off the top at the most?
    Oh it must be that Alliance where the entitled Gatekeepers to healthcare in America camp put yearly or lifetime caps on cancer victims anymore?
    The only other Alliance I can think of is where the money changers can't rescind your policy when they find out you had acne at 17.
    You folks are geniuses here.

  • Elston G||

    You mean the alliance where the middle men skim operators can't discriminate based on pre existing conditions?
    Or the alliance where the money changers can only skim 20% off the top at the most?
    Oh it must be that Alliance where the entitled Gatekeepers to healthcare in America camp put yearly or lifetime caps on cancer victims anymore?
    The only other Alliance I can think of is where the money changers can't rescind your policy when they find out you had acne at 17.
    You folks are geniuses here.

  • Paloma||

    What are you even talking about? How does Obamacare make ANY of that better?

  • Brett Bellmore||

    You mean the alliance where your home insurance can't charge you more if you contract with them after your house caught fire? That's what you're complaining about? Not the part where the government forced the guy with the paid off house and sprinklers to buy fire insurance, so that he could be ripped off to pay for rebuilding the house that was on fire before the first premium was paid?

    You seem to have bought in to the basic idea of the ACA: Forcing insurance companies to run a welfare program for the government, off the books. You're just complaining about the part that was intended to keep them from going bankrupt in the process.

  • Elston G||

    The ACA has once a year enrollment periods.
    You can't enroll in a policy after you end up in the ER thinking it's going to cover your treatment.
    It's amazing how uninformed you folks are.

  • chemjeff radical individualist||

    The bigger problem with this case is that it has the potential to serve as a substitute for a policy agenda. Republicans still need a broad health policy vision that goes beyond simply attacking Obamacare. But as long as they are basing their hopes on a legal manuever as poorly thought out as this one, that's not something we're likely to see.

    I completely agree. I have no idea what Republicans really stand for when it comes to health care. For years they chanted "get government out of my health care" but when given the chance, they explicitly chose to keep government in health care. Who knows what they really favor now.

  • Jerryskids||

    Abortions for some, miniature American flags for others.

  • NotAnotherSkippy||

    Ah, the purity pearls. Much like libertarians who profess to care about fiscal restraint and then scream and gnash their teeth when the usual Washington sausage comes out that actually does that but doesn't give them their COMPLETE REPEAL pony.

  • HGW xx/7||

    The "HEALTH CARE IS A RIGHT!" movement has been the long game of the left for decades upon decades. It's become so ingrained across all demographics - the young, the old, the urban and rural - that I think there is no way to avoid nationalized health care in the end. It's probably been their most successful indoctrination campaign.

  • Brett Bellmore||

    No, their most successful indoctrination campaign has been the "you must give us your children for 12 years to indoctrinate!" indoctrination program. Without that, all the other indoctrination programs would be hard to pull off.

  • Sevo||

    "Republicans still need a broad health policy vision that goes beyond simply attacking Obamacare."

    No reason that malign neglect shouldn't be a good policy; government 'doing something' is almost always a disaster.

  • Mark22||

    That's what the people want, and have always been willing to pay for.

    Spoken like the leftist you are.

    The people have always been willing to pay for universal treatment, regardless of income or age, originally through a complex network including thousands of "charity hospitals" all across America, financed by over a million churches, charities, foundations and fraternals.

    And that kind of "universal treatment" is compatible with libertarianism. A mandate and government-financed system is not.

  • Elston G||

    In a Democratic Republic we the people are the government.
    Like the market ignorant corporate fascist you are, you think we the people have to have him crony middleman money changing skim operation to administer a Health Insurance Pool.
    Pathetic.

  • Mark22||

    Will of the people and consent of the governed will always trump the bellowing and rage by the Sevo's of this world ... as even Ayn Rand said was proper (if no alternatives have the consent of the governed).

    I suggest you re-read that. Rand says consent of the governed is necessary but not sufficient for legitimacy. She clearly states:

    There is only one basic principle to which an individ­ual must consent if he wishes to live in a free, civilized society: the principle of renouncing the use of physical force and delegating to the government his right of physi­cal self-defense, for the purpose of an orderly, objective, legally defined enforcement. [...] In a free society, men are not forced to deal with one another. They do so only by voluntary agreement and, when a time element is involved, by contract.

    Try reading a health care mandate or pre-existing coverage into that.

  • Elston G||

    Disaster? For who? Regular folks or the donor class?

  • SimonP||

    The Supreme Court has never actually ruled that the individual mandate exceeds Congress's commerce powers. Roberts wrote an opinion that it does, but it is properly understood as non-binding dicta (a point that Somin, Adler, and others like to conveniently overlook).

  • NotAnotherSkippy||

    You mean the opinion signed on by the majority? That opinion?

  • Brett Bellmore||

    Yeah, the opinion that didn't strike down the individual mandate, which is why the talk about it exceeding Congress's commerce powers is non-binding dicta: It didn't effect the outcome of the case.

  • SimonP||

    The math is complicated on this one, but Roberts' opinion that the mandate exceeded Congress's Commerce Clause powers was not joined by any other member of the Court.

  • Mickey Rat||

    So the Republicans won't kill the preexisting conditions mandate because they don't want to be the ones to tell the people that there is no pot'o'gold at rainbow's end.

    We are doomed if the voters cannot handle the truth.

  • Paloma||

    There are many options for pre existing conditions. Health insurance could compete over state lines, for instance, or even international borders.

    The argument for insurance not covering pre existing conditions was the whole reason for having Obama care to begin with. Is there some other advantage to it? Everyone's premiums have gone up. WAY up. So 95% of people pay two or three times as much in premiums and have bigger deductibles, but people with pre existing conditions get dropped?

    What possible advantage is that? That's like driving Fred Flinstone's car that you push along with your feet.

  • Paloma||

    Physicians co ops that do not accept insurance but accept pay for service in combination with a monthly fee you pay to be a patient treated by them? The monthly fees are substantially lower than insurance premiums.

  • Elston G||

    Baseless assertion.
    Cite your source.

  • Mark22||

    When will you name ... just one?

    Private health insurance.

  • Elston G||

    95% of Americans? You think 95% of Americans are not eligible for subsidies?

    Are you daft?

  • Paloma||

    Subsidies that go to them? Or insurance companies? They STILL have to pay more for their health insurance,which until recently was mandatory. Obamacare is the worst of all possible systems. I really don't see how it could be worse.

  • Elston G||

    Premiums of gone down for folks to get subsidies. And it isn't 5% of Americans that qualify. How do you not know this?

  • Elston G||

    Have gone down.
    For folks that do received subsidies.

  • Elston G||

    You have reading comprehension problems.

  • Elston G||

    It seems you are one the many folks here at this forum that couldn't speak to Healthcare in America if their life depended on it.

  • Elston G||

    Have you ever heard in a discussion any libertarian speak to a "free market" where entitled, crony capitalist middlemen skim operators become defacto gate keepers to life-saving care for millions of hard-working Americans?

  • Paloma||

    So Americans who aren't working hard enough to suit you don't get life saving care? Please stop with the "hard working" crap. It has nothing to do with who gets health care.

  • Elston G||

    Logical fallacy. Please address the freaking question.

  • MBmb||

    To me, the bigger issue is that what Democrats adopt an ill thought-out pseudo-libertarian position with potentially negative consequences (e.g. making abortion "safe, legal, and rare") then there's never any serious attempt to hold them to account for the consequences of their position (i.e. statistics for the number of abortions are hard to come by, there are few large-scale studies fleshing out the negative consequences).
    However, when Republicans are now doing the same, there will be 1000 opinion pieces pointing out their lack of a well thought-out solution and the catastrophic consequences of their irresponsible stance.
    I think this is due to urban intellectuals' natural left-wing sympathies and to their desire to fit in with their left-wing circles of friends. They are trying to signal their usefulness to the left-wing cause, as supposedly "impartial" critics of the Republicans. Probably this is why they are still tolerated.

  • Mark22||

    Apparently that's the New Libertarianism: forcing companies to write unreasonable, costly contracts and ascribing unlimited powers to Congress because majoritarianism is libertarianism!

    Let's not even get into little logical details like that the fact that the current Congress isn't the one who passed the law (so its intent is irrelevant), the fact that the Congress who passed the law didn't really understand it, or the fact that Republican ass covering a few months before an election hardly represents "intent".

  • Elston G||

    Any of you so-called Libertarians ever discuss the fact that these middle men skim operators don't bring anything of economic value to the table in the healthcare industry in America, yet just by having the private capital only world globalists and the richest corporate entities have access to, they were appointed as market gate keepers to all Americans not on the plantation that is employer provided coverage?

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