The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last year, the Department of Justice turned heads when it refused to defend the constitutionality of portions of the Affordable Care Act and argued that the courts should invalidate key portions of the law. In a brief filed in Texas v. United States, DOJ accepted the argument made by several states that the so-called "individual mandate" was rendered unconstitutional when Congress zeroed out the tax penalty used to enforce it. More surprisingly, DOJ argued that the mandate's constitutional infirmity also required invalidation of the ACA's insurance market reforms -- guaranteed issue and community rating. In a ruling last year, a federal district court agreed that the penalty-less mandate is unconstitutional and that (as a consequence) the entire ACA must fall.
Under questioning at his confirmation hearing, Attorney General William Barr pledged to reconsider the DOJ's position -- and reconsider the federal government's position AG Barr has certainly done. According to a letter filed today with the U.S. Court of Appeals for the Fifth Circuit, DOJ now believes that the district court's judgment should be upheld. In other words, the Department of Justice has decided not to defend any portion of the ACA.
The Justice Department's change in position is astounding. It was remarkable enough that DOJ failed to question the states' standing to challenge an unenforced and unenforceable mandate, and even more remarkable that the Department failed to defend a readily defensible federal law. It is more remarkable still that the DOJ is abandoning its position -- and the position on severability advanced by the Obama Administration -- in favor of a highly strained and implausible approach to severability with little grounding or precedent.
I was among those who cheered the selection of William Barr as Attorney General and hoped his confirmation would herald the elevation of law over politics within the Justice Department. I am still hopeful, but this latest filing is not a good sign.