The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.