Thoughts on the Trump Administration's Decision Not to Defend Obamacare [updated with acknowledgement that I misinterpreted one of the administration's arguments]

They have every right to refuse to do so, much as Obama had a right to refuse to defend the Defense of Marriage Act. But some of the arguments Trump is making are extremely dubious.


On Thursday, the Trump administration indicated that they are not going to defend the Affordable Care Act against a new lawsuit challenging its constitutionality filed by twenty "red" states, led by Texas. The situation has obvious parallels with the Obama Administration's decision not to defend the constitutionality of the Defense of Marriage Act in 2011. The main difference between the two is the partisan valence. Trump's decision has been denounced by liberal Democrats and applauded by conservative Republicans, while Obama's drew the opposite set of reactions. The contrast is yet another sign of widespread partisan bias in our political system. In my view, both administrations were justified in refusing to defend laws they consider to be uncontitutional. At the same time, some of the arguments the Trump administration is making range from the dubious to the outright ridiculous [But see Update #2 below, where I acknowledge I misunderstood one of their arguments, which is therefore not flawed in the way I originally thought]. They deserve censure for that. But, sadly, it is not all that unusual for the executive to adopt awful arguments when doing so might further their political objectives.

I. Why the Administration had a Right not to Defend the Obamacare Individual Mandate.

I defended Obama's DOMA decision at the time, and most of what I said applies with equal force the the Obamacare case today:

The president takes an oath to "preserve, protect, and defend" the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.

Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven't yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.

Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court… Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not…. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.

People who support DOMA and oppose the ACA—or vice versa—can try to argue that the two cases are different because there is no plausible defense for the constitutionality of one of them, whereas there are good arguments for the other. I am skeptical of such claims.

In my view, both DOMA and the ACA individual health insurance mandate (which requires most Americans to purchase government-approved health insurance) are unconstitutional. I joined and helped write an amicus brief filed by a group of federalism scholars, arguing that DOMA exceeds the powers of the federal government. I also wrote an amicus brief against the Obamacare individual mandate, and wrote a coauthored book and various articles arguing that it is unconstitutional. Even so, I think it is clear that the other side had a plausible case on both issues. Section 3 of DOMA was ultimately struck down by a narrow 5-4 majority in the Supreme Court. The individual mandate was upheld by a similar 5-4 majority, but only after Chief Justice Roberts reinterpreted it as a tax in order to save it from unconstitutionality.

What was true of the original 2012 case against the individual mandate is also true of the new challenge brought by the twenty states, against the revised version of the mandate that remains after the tax bill passed by Congress in 2017. Here too, there is room for reasonable disagreement. The GOP tax bill kept the mandate itself, but zeroed out monetary penalty that violators have to pay. The states challenging the mandate argue that the elimination of the penalty ensures that the mandate can no longer be considered a tax, which in turn means that it is now unconstitutional, because the Court ruled in 2012 that the mandate is not a permissible use Congress' powers under the Commerce and Necessary and Proper Clauses. I think this argument is correct. In my view (see here and here), the Chief Justice was wrong to conclude that mandate qualifies as a tax, even when violators were required to pay a fine. But it is far more clear that the mandate cannot be a tax if there is no penalty attached to it, monetary or otherwise. A "tax" that does not require anyone to pay anything is no tax at all. Nonetheless, defenders of the revised mandate have at least minimally plausible arguments, and the resolution of the issue is not completely clear.

If you believe that the executive has a duty to defend any federal law for which it is possible to make a reasonably plausible argument, then you have to condemn both Obama and Trump. I do not, so I don't.

Some may fear that federal laws will not get a proper defense if the administration refuses to do it. But in the case of virtually all significant laws, there are likely to be other parties who have both the means and the motive to step in. In the case of DOMA, the defense was undertaken by the Bipartisan Legal Advisory Group of the GOP-controlled House of Representatives. California Attorney General Xavier Becerra has indicated that he and his state would be happy to step in to defend the ACA against the Texas lawsuit. There is no doubt that California, like BLAG, has no shortage of resources and highly competent attorneys with which to litigate the case. And if I were a fan of either DOMA or the ACA, I would prefer for the law to be defended by those who genuinely want to save it, as opposed to an administration that would be happy to see it struck down, and therefore unlikely to make a strong effort.

II. Why Trump's Decision is Nonetheless Part of a Troubling Pattern.

While Trump, therefore, has good reason to refuse to defend the newly neutered individual mandate, there is an additional important wrinkle in the Obamacare case. The really big political stake in the twenty-state lawsuit is not the now virtually toothless mandate, but the states' claim that the rest of the ACA must fall along with it. The states do not assert that any other part of the ACA is unconstitutional. Instead, they claim that other parts must go because the individual mandate cannot be "severed" from it. If one part of a law is declared unconstitutional, and that part cannot be separated from the others because it is too important to the overall structure of the legislation, then the entire thing must fall.

For reasons I summarized here, I believe this part of the states' lawsuit is weak, and deserves to fail. Georgetown law Professor Marty Lederman notes some additional flaws in this element of the red states' case. The fundamental problem is that, by eliminating the penalty, Congress has itself "severed" the original version of the mandate, and what is left cannot reasonably considered a crucial element of the ACA as a whole.

In addition to endorsing the states' dubious severability argument with respect to much of the ACA (specifically, the guaranteed-issue and community-rating requirements), the Trump administration is also now supporting the far more absurd claim that the new mandate is actually more coercive than the original version rather than less so [But see UPDATE #2 below, where I acknowledge that I misunderstood the nature of the administration's argument here]. In the original 2012 Obamacare case, Chief Justice John Roberts' decisive opinion ruled that the mandate qualifies as a tax in part because it offered people a "lawful choice": either buy the required insurance or pay the financial penalty. Now that the penalty no longer applies, the state plaintiffs and Trump claim that citizens have no choice but to buy an ACA-compliant insurance plan. This, presumably, makes the mandate more likely to be unconstitutional than it would be otherwise.

This argument is creative, but also laughably bad. The 2017 tax bill does not change the text of the mandate itself, and does not make it any more mandatory than before. As a technical matter, it does not even completely eliminate the penalty, but cuts it to zero. Whereas before people subject to the mandate had the options of either complying or paying $695 or (in some cases) more, now they have the "lawful" options of compliance or paying $0. The latter set of options seems a good deal less coercive than the former. Marty Lederman elaborates further [UPDATE: I think Prof. Lederman makes the same mistake that I made, discussed in UPDATE #2 below]:

Obviously the 2017 Republican Congress did not intend to diminish individuals' choices and to require them to maintain health insurance beginning in 2019 whereas they previously did not have to do so….. Instead, the new Congress's design was manifestly to lessen the burden on individuals by giving them an option they previously did not have—namely, to decline to either maintain insurance or pay a tax: Come 2019, payment of "zero" will be a lawful option.

Their unwillingness to associate themselves with this silly theory is probably what led all the career Justice Department attorneys involved in the case to withdraw from it. I sympathize with their concerns. The Trump administration deserves censure for endorsing this awful argument, even if, in my view, the revised mandate is unconstitutional for other reasons. Whether or not the revised mandate offers fewer choices than the original version, the former cannot be a tax because it does not require anyone to pay anything. But that reality doesn't justify the argument advanced by the administration.

Sadly, however, it is not that unusual for the executive branch to advance terrible arguments when doing so might bolster their political agenda. And all too often, they do it even in situations where "winning" the case would infict great harm on innocent people. Just in the last few months, federal government lawyers argued that working as a slave laborer for a guerrilla group qualifies as providing "material assistance" to terrorists, and that the deliberate flooding of thousands of homes is not a taking requiring compensation, so long as the government "only" does it once. There are similar examples from past administrations. Perhaps the government lawyers in those cases should have withdrawn, too. Yet few claim that the executive had a duty to forego these sorts of arguments. If not, there is no reason why the context of refusing to defend a federal law should be any different. If anything, ethical constraints on federal government litigation positions should be stronger in cases that endanger the rights of people with few or no resources than those that threaten federal laws that have powerful supporters willing and able to step in to defend them.

As I see it, there should be tighter quality control on federal government litigators across the board. Unlike private lawyers, who arguably have a duty to make almost any argument that might help their clients, federal officials' first duty is to the Constitution, the law, and the public interest. For that reason, the administration's decision to endorse two of the state plaintiffs' most dubious theories deserves much of the harsh criticism it's getting. But, unfortunately, it is just one instance of a far broader problem that long predates Trump. Instead of treating it as a unique outrage, we should take this opportunity to reconsider the federal government's litigation practices more broadly.To put it in Trumpian terms, the swamp here is a deep one, and it will not be easy to drain.

UPDATE: I have made minor changes to the wording of this post in order to increase clarity.

UPDATE #2: Having read the administration's brief more closely, I believe I erred in my interpretation of their argument on the coerciveness of the revised mandate. The argument does not claim that the new version is more coercive than the old, but rather that—by zeroing out the monetary penalty—the 2017 law makes it impossible to interpret the mandate as a "tax" as a "saving construction" in order to prevent it from being unconstitutional. In his controlling opinion in the original case challenging the individual mandate, Chief Justice Roberts concluded that "the statute reads more naturally as a command to buy insurance than as a tax," but he felt bound to adopt the latter approach in order to save it from being unconstitutional. One element of that reinterpretation is the idea that mandate offers people a "lawful choice" between buying insurance and paying a fine, as opposed to treating the latter as a penalty for illegally failing to do the former. If the mandate no longer raises any revenue, it can no longer be considered a tax, and therefore the any attached fine—including one that "requires" a payment of zero—becomes just a penalty, not a tax.

I still think the administration and the states are seriously wrong about the severability issue, and that the federal government too often puts forward highly problematic arguments in litigation. But I must apologize for my misinterpretation of a key part of their argument about the status of the individual mandate.

NEXT: N.Y. Set to Criminalize Much "Verbal" "Abuse" of Under-18-Year-Olds Online

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. 1. I’m on the opposite side – I thought when Obama did an end run over DAMA it was a bad idea, and I think this is a bad idea now. Bad, like where did the checks and balances that keep our country running go bad.

    2. Being ‘deeply troubled by Trump’s latest act but what can you do’ is coming to become a Serious Conservative mantra.

    1. Didn’t Congress step in an appoint counsel? If so, do you really think the outcome in the Courts depends that much on which fancy law firm defends/attacks a given law?

      I mean, the latter actually strikes me as more concerning. I’d like to believe that, while incompetent lawyering can doom a case, ultimately once you each some threshold of competence the result of big-ticket cases rests on the merits and not on the lawyering.

      [ Clarification: I mean big-ticket Constitutional or statutory cases, not specific-detail cases. Things like DOMA or Heller or whatnot. It’s OK to the democratic order if marginally better lawyers get marginally better results in some breach of contract case or criminal case (might or might not be true). It’s disturbing if the same is true for cases on the principles. ]

      1. Yes. Obama didn’t quite do an “end run over DOMA” (sic) or rather one specific section of it.

        To be clear what happened. His Administration, to the distaste of some GLBT rights groups and such, first defended the statute. Then, particularly because a case arose in the 2CA where the matter was open, argued heightened scrutiny is required. Beforehand, it held that rational basis could be met though tbh I find that hard myself given the whole picture.

        Still, it enforced DOMA. It “faithfully executed” the law in that sense. But, it didn’t defend the specific section at least (sec. 2 is a somewhat harder case) which reflected past policy in a few cases, including one at least involving John Roberts in his executive position. Meanwhile, it supported third party standing for BLAG so that it would be defended in Court anyhow. The elite Paul Clement led the way there. He had problems since the case is so weak, but can’t think anyone else would do better.

        1. Since the case was not clearly decided by the courts, though the law did strongly seem to point in one direct, it made sense to let the courts decide in that question, particularly to protect minority rights. Interpreting the law is its job. So, this would turn on the merits (is a strong issue of state rights was at issue, there is a possible constitutional argument there too) which are weak here, especially on the severability question. Also, the states already are suing. The need of the executive to step in to defend their rights are weaker here though it does look like there are pro-PPACA states who will step in. I’m not sure if the Trump Administration are as supportive of their standing though.

          Also, the Supreme Court in King v. Burwell made it clear that weak arguments that would interfere with the execution of congressional will here would be looked on with disfavor. It is like there was a case but a few years before Windsor where DOMA was particularly deemed valid, instead of the pattern going in the other direction.

  2. Being ‘deeply troubled by Trump’s latest act but what can you do’ is coming to become a Serious Conservative mantra.

    A lot of CYA by conservatives. They own Trump.

    1. No covering needed; so much winning under our heroic & noble PRESIDENT DONALD J. TRUMP.

      1. Who are you trying to convince?

        1. Youll never be convinced because you are a dishonest partisan. Some look at trumps actions above his words, you only care about the latter.

          1. I look at his actions and conclude that he is an utter disgrace – a crook, a liar, a blowhard, and a fool. The man is dragging the country down in countless ways, and it will take us decades to recover. But hey, Clinton’s emails. Right?

            You know what, Jesse? Trump and his supporters are by far the greatest threat to the future of the United States. More than ISIS or North Korea or anybody. And the second biggest, which has considerable overlap, is the Republican Party, which has decided to kiss the Donald’s ass because Gorsuch, or something.

            1. How is Trump dragging the country down?
              So far, he’s obeyed the law – he’s done a better job of that than the last President did, in fact.
              He hasn’t investigated or arrested people for insulting him, or used the IRS to harass political opponents.
              The worst thing that can be said about his behavior in office is that he’s likely abusing the Commander in Chief role without Congressional authority. But that’s hardly new, not by many decades.
              Unless being rude and crude is “dragging the country down”…

              The “Resistance” however has dragged the country down – “journalism” is worse than ever, political violence in the streets that hadn’t been seen in almost 50 years, government officials actively conspiring to prevent the President from acting (eg Yates, Mcabe), extreme polarization and otherising… the list goes on.

              The fact that you say that ISIL, an organization of mass-murdering terrorist slavers, is better than Trump just shows you are a victim of the same no-think tribal ignorance that is embodied so perfectly in the “Antifa” movement.

              1. ‘More of a threat to America’ is not the same as ‘better than.’ ISIL is a horror, but it’s not going to bring down the US.

                Delegitimizing the FBI and any media who disagree with the party in power is more of a threat for that.

                As is blatant corruption well above anything in the modern era, and Congress repeatedly backing off from enforcing any of the laws or Constitutional provisions that address that.

                1. So, it’s bad for a President to delegitimize the FBI just because they whitewashed his opponent and spied on his campaign, but it’s just peachy for the FBI to try to delegitimize the elected President.

                  As for “blatant corruption well above anything in the modern era”? I think you must have spent the last few decades in a cave, or be just uncritically believing every allegation about Trump, or perhaps both.

                  1. Other countries loudly declaring how they are staying in Trump properties, giving loans to Trump family members, China expediting trademark permissions.

                    Then there are the Pruit and Manuchins who are just living profligately in a way other administrations have not been.

                    It’s minor stuff, which just makes it worse.

                    1. “It’s minor stuff, which just makes it worse.”

                      Nothing worse than minor stuff.

                      Wake me when there is actual corruption.

                      [Mrs. Mnuchin (not Manuchin) is my hero so lay off her.]

                    2. Calling the CEO of Chic Filet to get a job for your wife is minor, which just shows how casually these people are taking having any sort of pride in who they work for.

                      You seemed quite awake for intimations of what might be corruption with Hillary, Bob. I recognize some partisan blinders are inevitable, but have some self-respect!

                    3. In no way shape or form is the Chic-fil-A call corruption, minor or not.

                      The EPA head has zero, repeat, zero, to do with Chick-fil-A. Even if Chic-fil-A had decided to let Mrs. Pruitt pay them money [that is what a franchisee does, pay the parent money for the right to make money], no benefit would have come from EPA.

                      Pruitt is doing what he was intended to do at EPA so I do not care if he networks with Chick-fil-A or uses his aides for personal chores.

                      “You seemed quite awake for intimations of what might be corruption with Hillary, Bob. I recognize some partisan blinders are inevitable, but have some self-respect!”

                      The hypocrite allegation works both ways. You dismissed every allegation against Clinton as meaningless.

                    4. You should care if people flaunt their positions, even if their policies are something you like.

                      It’s the same hypocritical BS as feminists supporting Bill Clinton because his policies were what they wanted. Though I suppose you’re at least honest about it.

                      Just because Pruitt failed to lean on Chick-fil-A doesn’t mean it was at all proper. Going to the CEO, ffs!

                2. Delegitimizing the FBI and any media who disagree with the party in power is more of a threat for that.

                  So, Libertarians are a deep threat?

                  Libertarians have little problem condemning the FBI. Have done so for decades now.

                  As is blatant corruption well above anything in the modern era

                  Miss the last 8 years or something?

                  1. Condemning the FBI because it sucks and saying it’s illegitimate are different things.

                    One has to do with respect for rule of law, the other has to do with disrespect for it.

                    Comey is in trouble for not whitewashing Hillary’s investigation enough. The FBI is investigating the President, at the DoJ’s request. That’s all it takes to delegitimize a Presidency?! Sounds like you want Trump to be above the law.

                    1. Condemning the FBI because it sucks and saying it’s illegitimate are different things.

                      He said the ENTIRE bureau is illegitimate? Or just the laughable investigation of him and the small cabal that both exonerated Hillary and have given him an anal probe?

                      The FBI is investigating the President, at the DoJ’s request. That’s all it takes to delegitimize a Presidency?! Sounds like you want Trump to be above the law.

                      No. Telling the admin they are not a threat and having them respond “Could you tell the press that then?” and then have them decry “THEY ARE TRYING TO INFLUENCE US TO STOP THE INVESTIGATION!” is illegitimate.

                      Spying on them during the campaign is illegitimate.

                      Using oppo research to get a FISA warrant is illegitimate.

                    2. He’s said the leadership and everyone investigating him is illegitimate. And he’s not too careful about collateral damage to the institution generally.

                      It would be improper for the FBI to comment on an ongoing investigation. Having the President pressure the FBI to do so is some hinky business.

                      And there was no spying. Look it up. That’s been entirely debunked by everyone from the GOP to Ken Starr to everyone this side of Alex Jones.

                      Oppo research is still research.

                    3. “Condemning the FBI because it sucks and saying it’s illegitimate are different things.”

                      Yes, they are different things, and it’s the latter that’s appropriate. The FBI isn’t doing a bad job at something it should be doing. It’s doing things it shouldn’t be doing.

                3. “Delegitimizing the FBI and any media who disagree with the party in power is more of a threat for that.”

                  The left’s new found worship of the security services is maybe the most amusing thing of the Trump era.

                  1. The FBI is bad.
                    Trump’s attacks on the FBI for investigating him are also bad.

                    These can both be true, Bob.

                    1. How is Trump a crook? How are the patriotic Trump supporters a danger to the country? They’re not the ones rooting against America on everything, because Trump. People are having sick, fevered delusions of Trump going to prison. It’s exactly like people who thought Obama would be in prison for being a secret Kenyan born Muslim. Only this Trump conspiracy theory is even more whack and yet has accumulated ten times the potency and following. It all makes so much more sense when you consider the admission and explanation of mass mental illness and hysteria explained by Dana Milbank at the Post. :

                      “President Trump actually is making us crazy

                      Those on the right might label this “Trump Derangement Syndrome,” much as I and others detected an “Obama Derangement Syndrome” previously. But the mental trauma caused by politics has reached a point, Aibel argues, where psychoanalysts must rethink how they do things.”

                    2. ML, we don’t know Trump himself is a crook, but his admin is sure as heck corrupt. From Pruit to the Trump hotels to Ivanka’s trademarks to Cohen and Russia.

                      They are also ignoring Trump’s lying and use of the Presidency to threaten companies over twitter. Which is not something a public servant should be doing in any country that has any pride in itself.

                      They just say ‘TDS’ or ‘fake news’ whenever anything anti-Trump is brought up. Which means there is literally nothing Trump could do to tarnish his reputation to them, since anything they don’t care for they just turn their eyes to Democrats.
                      Weird how you listen to the Post when you agree with it but discard it all other times. That’s some weaponized confirmation bias right there. That’s a kind of tribalism before substance that divorces voting from policy and is indeed dangerous.

                      And people who are offended by Trump and his admin aren’t rooting against America. Don’t wrap yourself in the flag and claim to have a monopoly on patriotism, it’s offensive.

                    3. “Trump’s attacks on the FBI for investigating him are also bad.”

                      You can’t have it both ways. If the FBI is doing wrong, it’s appropriate to attack them for doing wrong.

                      What’s the difference between siccing the FBI on Trump while he was still a candidate, and Watergate? Nixon didn’t use government resources to burgle the DNC headquarters. In my book, that makes Watergate less serious, not more.

                      The FBI ran a whitewash on one party’s nominee, put more work into destroying evidence than actually investigating, and then allowed themselves to be used by the administration to investigate the candidate of the party. Allowed? By all appearances they were eager to do it.

                      My deep, dark suspicion is that they didn’t just investigate Trump. I’m guessing that they investigated most or all of the Republican candidates for the nomination, and we only found out about Trump’s investigation because he won the election. They started spying on his campaign long before it was obvious he was going to be the nominee. They probably had parallel investigations into all the Republican candidates, and just shut them down as they lost.

                    4. I’m not arguing you can’t criticize the FBI, Brett. I’m saying when you are the President, arguing the FBI’s investigation of you proves they’re the corrupt ones is not a proper way to deal with being investigated.

                      The rest of what you say is just stuff that doesn’t reflect reality; it’s paranoid delusions.

                4. Define what constitutes the “modern” era? By happenstance was just reading about James Roosevelt who graduated from Harvard in 1930 and managed to found an insurance company by 1932. with a customer list which included American Tobacco, CBS and American President LInes (90% owned by the USG). Seven years later he moved on after “earning” a half million dollars.

                  My point is not that “others did it too” making Trump somehow OK. I’d be far happier if Trump had gone 100% blind trust and not let any family near the place. But I am just ever so weary of the hyperbole…

          2. …So you’re saying that anyone who listens to Trump must be an anti-Trump partisan?


            1. you are a dishonest partisan. Some look at trumps actions above his words, you only care about the latter.


  3. It’s very understandable that Presidents should follow the lead of courts on these matters.

    When courts claim, in 5-4 decisions, that there is no rational basis for laws they don’t like for political reasons when half the country and half the court sees a perfectly rational basis for them, it’s understanable, indeed inevitable, that the political branches will do the same.

    President Trump is doing exactly what the Court does when he says that no rational person could see an argument for the law’s constitutionality. He, after all, is the quintessential rational person in his eyes, just like the court’s Justices are in theirs. And if the Justices consistently take the view that if they can’t see reason in what others have to say, obviously no-one can, why shouldn’t the President say the same thing?

    After all, everyone agrees – everyone – that half the Supreme Court is stark raving mad, so irrational that a rational person has a constitutional duty not to take what they say seriously. There have been so many 5-4 rational basis decisions when half the court has solemnly proclaimed the other half crazy, every which way.

    The only thing people disagree on is which half.

    1. This post is funny, but so true about “rational basis” which is really just irrational excuse making.

    2. These 5-4 splits especially, but all splits on constitutional matters generally, really annoy me. It seems to me that one of the requirements for obeying legislation is that the legislation be clear and understandable by the people who are expected to obey it. If learned judges of the highest caliber (*snort*) can’t agree on what some legislation means, how can any ordinary person be expected to have more insight; how can any court convict someone for disobedience and have a clear conscience?

      The only rational (!) procedure is that any legislation which can’t get unanimous approval as to its constitutionality ought to be thrown out in its entirety, and all previous convictions voided.

      1. Holy moly that’s great. Get one pro-choice member on the court and all pro-life legislation is DOA forever?

        Get one pro-gun member on the court and all gun-control legislation is DOA forever?

        Get one pro-cop member on the court, and all responsible-policing legislation is DOA forever?

        This proposal will no doubt greatly decrease the stakes of confirmation hearings!

      2. The nature of lawmaking makes understanding of was the law meant becomes almost impossible after the gavel slams at the vote.

  4. In the old days, when law was less brazenly political, I would have said the President has a duty to defend laws where it’a easily predictable several justices will vote to uphold them, as was the case with DOMA and is the case here. But it’s inevitable that the courts set the tone on these things.

    After all, constitutional decisions are essentially authoritarian, a way of a small number of powerful people to make decisions completely bypassing legislatures and elections.

    If we want an authoritarian society, if we want to turn legislatures into politically powerless debating societies, the simplest way to do that is to make, or pretend that, every difficult political question is a constitutional one.

    1. OTOH, the simplest way to deprive us of a constitution is to declare every issue where the legislature or executive don’t like the Constitution a “political question”.

    2. Let’s stipulate that it’s easily predictable that several justices will vote to uphold the law.

      Let’s stipulate that the Executive (as a whole) refuses to defend it, but does not object if another party (Congress, a State, …) steps in to defend it.

      What does this actually change? We agreed that several justices will vote to uphold the law. They will do so in either scenario. What am I missing here?

      [ And for the record: I am against these shenanigans if somehow the ‘refusal to defend the law’ creates some procedural standing issue where no one else can do so. That’s different than simply letting a different body appoint the lawyers. ]

    3. When were these golden old days?

      I thought it is the mindset of the Reason class that the Constitution died during the New Deal. But, the law was pretty political before then too, though the concerns were somewhat different. There was judicial review that overturned legislatures and elections back to the early 1790s where a local Rhode Island paper money law was overturned.

      And, constitutional decisions overall tend to take into consideration legislatures and elections, in in part since courts have no armies and are made up of people selected by elected people and confirmed by legislatures. Anyway, difficult political questions are likely to involved constitutional questions in some fashion — hard not to at some point since they arise from constitutionally limited and created institutions.

      The question is how to balance things out.

      1. Damn, you beat me to it. The law (even the Constitution), by definition, has always been political.

  5. The interpretation of the “and” in Art I, Sec 8, Cl 1 will be interesting: must a tax pay debts and provide for the common defense and provide for the general welfare or may it simply do one of those three (or two, depending upon reading) things? Is a tax which does not necessarily raise revenue — like federal jury duty, where the penalty can be merely community service… or nothing at all — still a tax? Is it the case that it is simply enough for the public — the general welfare — to profit from the performance of a required duty such as purchasing health insurance and/or defending our borders against an influx of aliens? [And, yes, I’d be interested in see a distinction drawn between those two particular examples.]

    Way back when, a scholar who admittedly failed to consider _Butler v. Perry_ in its entirety was asked “Does compulsory jury duty violate the 13th Amendment?” and in response noted that “Perhaps ‘slavery or involuntary servitude’ only refers to forced labor that directly, materially, and personally profits the master. That definition arguably wouldn’t include ‘duties which individuals owe* to the state,’ because it is the PUBLIC which PROFITS FROM THE PERFORMANCE OF SUCH DUTIES.” (see http://volokh.com/posts/1190700994.shtml )

    1. The individual mandate COST $300 billion according to the CBO.

  6. Their unwillingness to associate themselves with this silly theory is probably what led all the career Justice Department attorneys involved in the case to withdraw from it.

    I agree that they’re entitled to withdraw from a case if they can’t in good conscience support the administration’s position. They’d have to find it actively But I’d question their decision to do so without adequate notice, leaving the administration practically without counsel.

    This looks to me more like premeditated sabotage than simply disassociating themselves from an argument they don’t agree with.

    1. Sorry, “They’d have to find it actively” objectionable, rather than merely meritless, as the DoJ has never been shy about defending meritless arguments.

      1. Noisy withdrawal is sometimes what is ethically called for.

        But what I’m more interested in is your sudden discovery of norms that should be followed that aren’t legal. I seem to recall that when it came to politics these days you thought the line was drawn at the law and nothing else. (Or was that Bob? Either way I’m curious about how you distinguish between good norms and bad)

        1. Employees have professional obligations to their employers, Sarcastro. Including giving due notice if you’re not going to do the job, so they can find a substitute.

          There’s “noisy”, and there’s “last minute”. The key aspect here was the latter: They withdrew without giving enough notice for the administration to properly replace them, and that was a deliberate breach of professional standards.

          My point, however, is that in all likelihood, they didn’t withdraw because they found the administration’s position meritless. They probably withdrew because they found the policy itself objectionable.

          The was over politics, not whether Trump’s position on this matter was legally defensible.

          1. “Employees have professional obligations to their employers, Sarcastro. Including giving due notice if you’re not going to do the job, so they can find a substitute.”

            That’s GARBAGE BB and you know it…

            Here, let’s see if the opposite is true.

            “Employers have professional obligations to their employees, Sarcastro. Including giving due notice if you’re going to be fired, so they can find a substitute.”

            1. Your conception of professional ethics certainly differs from mine, Apedad. But, yes, these particular attorneys should anticipate being fired sometime in the near future, and appropriately so after pulling that stunt.

              It’s one thing to decide that you can’t ethically be party to some professional action, quite another to sabotage your client’s defense by not giving them adequate notice of your plan to withdraw.

              1. I don’t know the exact situation, Brett, but noisy withdrawal is actually something I learned about in my ethics class in law school.

                If your client is going to insist on something you believe would be illegal or break another cannon of ethics, the way to balance both your obligation of zealous advocacy and upstanding integrity is to withdraw, make it clear you’re withdrawing because of a conflict with your client, not specify what it is, and make sure there is replacement council.

                Obviously the balance of equities is different for a government attorney; I cannot pretend I have any idea what they are, but I don’t think it’s facially ridiculous that newsmaking mass protest resignations was the required action.

                1. Did the oh so ethical Justice Department lawyers resign?

                  Because when a lawyer withdraws from a case, they usually do not still collect a paycheck from the client.

                  Mere virtual signaling. If they really were so appalled, resignation would be the honorable course.

                  1. Sorry, the denotation of resign is from a job not a case. Withdraw is indeed the better word.

                    Usually withdrawal from a case is the same as dropping a client. Not so for civil servants.

                    Demanding all civil servants can only resign if they really don’t like Trump’s directives is a convenient position, though not one with a lot of precedent.

                    1. “Usually withdrawal from a case is the same as dropping a client. Not so for civil servants.”

                      I do not see why not. How can they continue to work for an unethical client? Its like being partly pregnant.

                      Quit or write the brief.

                2. “If your client is going to insist on something you believe would be illegal or break another cannon of ethics, ”

                  Yes, and advancing a weak argument isn’t illegal, doesn’t break any cannon of ethics. The DOJ advances weak arguments all the time when an administration demands it.

                  There’s a difference between having a crooked client, and having a client that just wants you to make a case you expect will lose. Where did they identify anything unethical?

                  I think this is political, they just want the administration to lose the case.

                  1. “they just want the administration to lose the case.”

                    Yes, the Trump years have taught us that the “non-political” DOJ is in fact just a bunch of pro-Democratic liberals.

                    1. Trump years have taught us that the “non-political” DOJ is in fact just a bunch of pro-Democratic liberals.

                      This is the nut.
                      Anything that looks bad for Trump can only arise because someone behind it hates Trump and is acting in bad faith.

                      You see how your logic is a closed loop, right?

                  2. Advancing an argument in bad faith is, though.

                    Or one that would be counter to public policy.

                    1. “I think that argument is a losing one.” is NOT an excuse to quit at the last minute so your client can’t find someone to properly replace you. Again, I’m not disputing their right to withdraw from the case, just the manner of it, which seems to have been calculated to leave the administration without effective counsel.

                      And, where did you get the idea that DoJ attorneys have priority over the elected President in declaring what public policy is?

                    2. Counter to public policy isn’t about legality.

    2. I don’t understand the basis for your guess that the attorneys who withdrew made “their decision to do so without adequate notice, leaving the administration practically without counsel.” Within a couple of hours of their withdrawing, the government was able to file a twenty-page brief (plus indices etc.). My guess would be that the possibility of taking this position was discussed and debated at length, and that the attorneys well ahead of time said that they could not sign if that turned out to be the position taken. I used to work in the office involved, but I’m retired now and haven’t discussed the case with any of the attorneys involved, so like you I’m only guessing. (If I’d been handling the case, I’d probably have argued for filing a 12(b)(3) motion, but I probably wouldn’t have persuaded my colleagues (career or political) to go along.)

      (I’m assuming here along with what seems like most of the commentators and, again without any inside information, that the withdrawal was because the attorneys disagreed with the position rather than for some other, albeit less likely, reasons I could think of.)

  7. I agree the plaintiffs arguments here are complete nonsense. It treats a dictum in a Supreme Court opinion as a permanent command.

    The mandate may have been essential to the old law the Court reviewed, but obviously not to the new law without it. And whether or not it was severable from the old law, it is obviously severance in the new law, in which it was severed.

    The suit essentially ignores the role of Congress in making, and changing, laws. It claims that judicial assessments of Congressional intent made in interpreting existing congressional statutes represent commands to future Congresses requiring the same intent forever. It is essentially saying Congress can never change its mind about what is important to it. If that’s the case, it follows that elections have no role in our system of government.

    Complete nonsense.

    1. It’s the kind of argument that stupid people think is clever.

      1. Can’t find the DISLIKE button…

    2. Except we found out during the ACA reform effort that the CBO scored the individual mandate as a $300 billion COST…that is evidence it is a penalty.

    3. True, Congress can change laws as they did with the ACA however now that the individual mandate is no longer a “tax”; it now violates the Constitution; IAW SCOTUS previous opinion.

  8. Update #2 highlights why Roberts’ opinion is not logically sound. Namely, as the tax gets lower the mandate becomes less coercive and remains constitutional. But when the tax reaches zero and the mandate is de facto repealed, it becomes unconstitutional. Amazing!

    What is perhaps more amazing is the Administration jumping on Roberts’ illogic, paired with the absurdity that guaranteed issue and community ratings aren’t severable, to convince the courts to “legislate from the bench” in order to achieve a political result that would repeal the most popular part of Obamacare without achieving the President’s campaign promise of a total repeal.

    1. The simplest answer is that it’s better politics this way. They can both claim to have ‘ended Obamacare as promised’ and can blame the Court for taking away your ‘free stuff.’

    2. “…absurdity that guaranteed issue and community ratings aren’t severable…”

      Blame that on the Progressive Democrats who controlled a bullet proof Congress and White House; as they were the ones that ensured there was no severance clause in the PPACA.

  9. This trend will continue so long as liberals don’t believe the Constitution means anything beyond embodying their fleeting desires and whims. There are plenty of good arguments (that I disagree with) that the individual mandate is necessary for the entire system to work. There are NO good arguments that the founders intended the Commerce Clause to grant plenary police power to the federal government. There are good arguments that the 2nd Amendment protects an individual right that may lead to more harm than good (all of which I strenuously disagree with). There are NO good arguments that the 2nd Amendment wasn’t intended to protect an individual right.

    As long as the left refuses to take the Constitution seriously, these types of shenanigans will continue.

    1. Actually Stevens’ dissent is obviously the correct strict constructionist interpretation of the 2A…Scalia’s majority opinion is a total joke! If you have a problem with the penalty/tax obfuscation of Roberts then you should definitely have a problem with Scalia and his “free polity”/state obfuscation in Heller.

      1. I do have problems with Scalia’s opinion in Heller. Stevens’ was worse, though.

        Scalia merely set out to neuter the 2nd amendment, make it a right to own guns that didn’t frighten the government. Stevens set out to utterly obliterate the right in question, by making it a right to bear arms only when ordered by the government to do so. It was like making freedom of speech out to be your “right” to answer when questioned by a police officer.

        At least Scalia’s perversion of it was still something that could be described as a “right”. But, yeah, there were serious problems with it.

        1. Historical writings cited by Scalia show that the 2a included the individual right. Historical writings cited by Stevens show that 2a included the right of the people to form militia’s for defense.

          The historical writings that DO NOT exist are that the right to keep and bear arms only exists with the government says you have that right in a militia as he argues in his dissent. Stevens has to torture history to claim there was no intention to enshrine the individual right in the constitution as if the historical writings cited by scalia never existed.

          From Stevens second paragraph of his dissent – “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

          1. Louisiana has prohibitions on concealed weapons in their state constitution!! The historical writings cited by Scalia were immaterial because they had little to do with the federal government whereas Stevens cited people like Wyatt Earp who was a federal official in federal territory.

            The 2A is obviously directed at preventing an incident like the events at Lexington and Concord.

            1. On the contrary, it was aimed at assuring that they would remain possible.

        2. The problem with Scalia’s opinion is the nonsensical “common use” doctrine. I think it would be totally reasonable to conclude that the 2nd Amendment protects arms that are commonly used by infantry. It’s not reasonable to conclude that the 2nd Amendment only protects arms that are commonly used by civilians. The latter leads to the idea that 1) the militia clause is not connected to the right and 2) that bans are Constitutional if they’re long-standing.

          Both of these are nonsense.

      2. Complete nonsense. The strict constructionist interpretation of the 2nd Amendment is not that it was written to protect government militias, and no reasonable person can conclude otherwise.

        1. The two rights in 2A are not mutually exclusive. There is the right of the people to form militia’s for defense and there is the individual right to keep and bear arms. The language of 2a and the historical writings support both rights.

          What stevens and the progressives argue is that the individual right only exists in conjunction with service in the militia, ie only when the government gives you that right. That is a proposition that has zero support in the language of 2a and zero historical writings in support of that proposition.

          1. Exactly.

  10. All of this silliness is because the courts tried to call a tail a leg, and now they’re being called to defend that judgement. The mandate was never a tax, regardless of what the courts said.

    1. And if it was a tax, it was unconstitutional, because it didn’t originate in the House.

      But that, the Senate’s practice of putting dead “HR” numbers on it’s own bills when it wishes to originate a tax bill, is a can of worms the Supreme court isn’t about to open. One of those explicit commands of the Constitution the court has decided it won’t enforce.

      1. Obama vehemently opposed the individual mandate and only included it as a compromise with moderate Democrats in red states that believed their constituents would support it. So the individual mandate was never essential to the ACA and in fact we now have true Obamacare thanks to Republicans repealing the provision.

        1. Obama didn’t write the ACA. Not even a small part of it.

          1. The president must sign legislation in order for it to become a law and Obama opposed the individual mandate at the beginning of the process and only agreed to the individual mandate to appease moderate Democrats in red states.

            The liberal wing of the Democrat Party always opposed the individual mandate and the Daily Kos almost refused the endorse the legislation over the individual mandate.

            1. Well, of course they did. The chief function of the ACA was to impose requirements upon insurers to provide insurance to large groups of people at well below actuarially justifiable rates, with a secondary purpose of handing out free goodies to particular constituent groups. (For instance, birth control having to be “free”.) “Well below actuarially justifiable rates”, of course, means “at a loss”.

              That this was going to destroy the private health insurance market was pretty obvious, but the ‘liberal’ wing of the Democratic party viewed that as a function, not a bug: Destroy private health insurance, and you clear away the biggest obstacle to imposing government health insurance on people: The fact that most people liked their plans. (Which is why Obama had to lie about people getting to keep their policies and doctors.)

              The purpose of the mandate was to keep the private insurance market going for a while, by compelling other people to buy insurance at a lot higher than actuarially justified rates, providing the insurance companies with the loot to pay for the giveaways. It delayed the destruction of the private insurance market.

              Of course the left didn’t like it.

              So, of course, the GOP has stupidly given the left what they wanted: The ACA without the mandate, converting the insurance market death spiral into a death vertical power dive. I suppose they think that it will make the problems with the ACA obvious enough to allow them to survive repealing it.

              1. Excellent analysis.

              2. Great analysis. Liberals hate private health insurance because they are socialists that want single payer. The irony is the group market was created by liberals and the group market actually makes the private health insurance market feasibile. So even though I believe our private group health insurance market is unAmerican and akin to Pullman towns I acknowledge it is probably the only reason we can have a private health insurance market.

                Also single payer would be a huge windfall to Americans with god jobs that are actually satisfied paying for something every other developed nation pays for with deficit spending!! And how would Medicare and Medicaid figure out reimbursement rates without the private health insurance market??

                1. A huge windfall, that we’d all end up with VA level care.

                  Why is it that the left fall in love with monopolies as soon as it’s a monopoly with an army?

        2. I’d love to see a citation for that one.

  11. I’ll say dubious and might go very dubious but extremely dubious is over the top.

  12. SORRY, Bull cow, you didn’t “make a mistake.” Instead, your hatred for the President got ahead of your pea sized brain. You are a worthless and pathetic excuse for a “legal scholar” and your consistent ineptitude shows that you are unable to objectively evaluate anything dealing with the Adminstration, all because you can’t stand the fact that President Trump is living rent free in your head and that he is a roadblock to your dreams of a global communist one world government.

    1. Actually, isn’t the real Rev. Arthur L. Kirkland living rent free in your head?

      1. Small “l” Kirkland reads like a Star Trek 180 degree opposite version from an alternate dimension of the original. Original version reads like he hammers away in a semi-coherent fashion on his laptop about “progress” and “clingers” while wired from a mocha at a Starbucks somewhere in San Francisco. Meanwhile small “l” Kirkland sounds like a guy I might meet at a American Legion post who considers himself well informed on legal matters because 7 years ago he read a Mark Levin book.

        God Bless both of them!

        1. I think the same person is running both shticks.

          1. I wouldn’t be surprised if it was, now that you point it out.

          2. Wrong.

      2. No, the fake and bigoted Comrade Kirkland is a broken record and a full blown piece of commie scum. Such people don’t get to live in my head, rent free or not.

  13. Goose, gander.

    Many on the right warned that it was bad precedent for lawyers to insert their own version of morality into their representation of the public in contested political issues.

    So, this is the inevitable result.

    1. I was one of those people.

      But ending your analysis with ‘goose, gander’ is myopic.
      Short term you’ll get what you want at the expense of a few norms and whatnot. Long term, we end up replacing our republic with scorched earth.

      If you think this is a bad policy, it should still be bad even if Democrats did it.

      Also, as has been noted above, this is pretty distinguishable from what Obama did in degree, if not in kind.

      1. “Short term you’ll get what you want at the expense of a few norms and whatnot.”

        Then your side ought not to have ignored the norm.

        After all, the failure to defend DOMA [or Prop 8 at the state level for that matter] turned out to be meaningless. Counsel gets appointed and the case proceeds. Do you think Tony K. thought “I would have upheld DOMA if only DOJ counsel had argued it”? It was just political pandering.

        ” this is pretty distinguishable from what Obama did in degree, if not in kind.”

        Of course, What we do is different from what you do. And vice versa.

        1. Putting responsibility only on the other side is a great way to have no principles.

  14. Must read! my names are Doris carter! from US Austin Texas for a year now i have been living with this virus called HERPES All thanks to Dr Abaka for changing my HERPES Positive to Negative, i do not have much to say, but with all my life i will for ever be grateful to him and God Almighty for using Dr Abaka to reach me when i thought it is all over, today i am a happy man after the medical doctor have confirmed my status Negative,i have never in my life believed that HERPES could be cure by any herbal medicine. so i want to use this medium to reach other persons who have this disease by testifying the wonderful herbs and power of Dr Abaka that all is not lost yet, try and contact him by any means with his email:drabakaspelltemple@gmail.com or contact him on whats app +2349063230051 website:https://drabakaspelltemple.blogspot.com.

Please to post comments