The Volokh Conspiracy

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Volokh Conspiracy

Will the Trump Administration Finally Abandon Its Bizarre Position in the Texas ACA Case? (Update: No)

CNN reports that Attorney General Barr is (again) voicing opposition to DOJ's argument that zeroing out the mandate penalty should upend the entire law.


After a federal district court judge in Texas held that the entire Affordable Care Act must be struck down because Congress zeroed out the penalty for failing to purchase health insurance, Attorney General William Barr and HHS Secretary Alex Azar reportedly opposed defending the decision on appeal. They apparently recognized that taking such a position would cut against longstanding Justice Department positions and require embracing weak and implausible legal theories. Nonetheless, they were overruled by the White House.

Today CNN reports that Barr and Azar are trying again:

Attorney General William Barr made a last-minute push Monday to persuade the administration to modify its position in the Obamacare dispute that will be heard at the Supreme Court this fall, arguing that the administration should pull back from its insistence that the entire law be struck down.

With a Wednesday deadline to make any alterations to its argument looming, Barr made his case in a room with Vice President Mike Pence, White House counsel Pat Cipollone, members of the Domestic Policy Council, press secretary Kayleigh McEnany and several other officials. The meeting ended without a decision and it was not immediately not clear if any shift in the Trump administration's position will emerge. . . .

According to four sources familiar with the meeting, Barr argued for modifying the administration's current stance to preserve parts of the law, rather than fully back the lawsuit filed by a group of Republican states. . . .

Longtime readers know that I am no fan of the ACA, but I am no fan of this lawsuit either. Indeed, like many other ACA critics, I find the arguments made by the plaintiff states to be quite poor, and I was disappointed to see them embraced by a district court judge and given further credence in a divided opinion of the U.S. Court of Appeals for the Fifth Circuit.  I also expect to participate in an amicus brief on the issue of severability before the Supreme Court.

[Update: CNN reports the Trump Administration will maintain its position in this case:

"We're not doing anything. In other words, we're staying with the group, with Texas and the group," Trump told reporters in the Oval Office.
Interestingly enough, Trump also said his administration has "already pretty much killed it because we got rid of the individual mandate."]


For those interested, here are my prior posts (and other articles) on this case:

For the contrary views of this case, see the various posts by my co-blogger Josh Blackman.