Affordable Care Act

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.

NEXT: 18-to-20-Year-Olds and the Second Amendment: Challenge to Florida Law Can Continue

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  1. Well I for one am looking forward to the Supreme Court having another go at explaining the mysteries of severability.

    1. “It’s not a ‘tax’, it’s a ‘tithe’.” 🙂

  2. On the one hand, I agree with you that the plaintiff’s argument has always been a poor one, and in addition, think the Attorney General and the Executive generally have a duty to defend acts of Congress when there is a plausible defense, as there most certainly is here. Their oath is to execute not their party‘S platform but theIr country’s laws.

    That said, because both a district judge and a Circuit Court of Appeals have found in the plaintiffs’ favor, this forces the conclusion that their position, much as I disagree with it, is non-frivolous and hence not rediculous to defend.

    1. Did you feel that way when liberal governors and state attorneys general refused to defend laws limiting marriage to a man and a woman, as nature intended?

      1. Given Obergefell, you aren’t comparing apples to apples. The states’ own laws requires liberal (and conservative) governors and state attorneys general to refuse to defend laws limiting marriage to a man and a woman.

        1. Even when the participants honestly believe the law to be unjust or unconstitutional?

          1. Re: unjust, it doesn’t matter. Re: unconstitutional, they can resign.

        2. He meant before Obergefell. “refused ” is past tense

          1. Before Obergefell, I would agree, generally.

      2. I didn’t realize nature had an opinion on legal arrangements.

      3. Indeed so Sir. Not only did I feel that way. I said so. Look up the history of this blog and you’ll see.

    2. the Attorney General and the Executive generally have a duty to defend acts of Congress when there is a plausible defense

      I’m not quite sure this situation is entirely analogous to cases where the DoJ or State equivalents decline to defend laws because they don’t like them as a matter of politics.

      In the traditional case, the legislature passes a law and the AG / State AG refuses to defend it on the basis that it is unconstitutional. Which implies that the legislature passed an unconstitutional law ab initio. Which is disrespectful to the co-equal branch, unless there really is no plausible case at all that the law is constitutional.

      In this case, it seems like the big issue is severability – ie what was Congress’s intention should the mandate be found to be unconstitutional. If the DoJ thought that the better view was that Congress intended that the law should fall wth the mandate, that is not disrespecting Congress. That’s respecting Congress.

      Since the original SCOTUS case found, IIRC, that the mandate was not severable, the argument that it is now severable rests on inferences about what the 2017 Congress intended.

      I am very confident that I know what the 2017 Congress intended – nothing in particular. No doubt a good chunk of the Republicans were hoping to shoot the whole law down with a well placed bullet and squishier Republicans were not. All of which is an excellent reminder of why “intent” as a basis for Constitutional or statutory interpretation is a thoroughly stupid idea, which should only be attempted as a very poor second to reading the text.

      My own view on severability is that it should be assumed unless the contrary is stated expressly in the law.

      1. In this particular case, if Congress didn’t want the mandate to be severable, why did it sever it and leave the rest of the act standing?

        Sometimes the best indicator of what Congress intended to do is what it actually did.

        1. Except that it neither severed the mandate, not abolished it. It simply reduced the penalty for defying the mandate to zero. The mandate is still there in the text of the law, and folk are squabbling about the implications.

          As Congress didn’t say anything about severing, nor did it actually effect a severance, we are left with mere inference from silence.
          Since it could have severed the mandate explictly, but didn’t, you could just as well infer that it did not intend to sever it.

          Your argument would work better if Congress had explicitly abolished the mandate, but it didn’t. So despite your presentation of your inference as if it were a description of Congress’s action, it isn’t. It’s just an inferene and it has to duke it out with other inferences.

      2. The Supreme Court wasn’t in a position to find the mandate non-severable when it affirmed it. Anything else would be dicta. So that issue has not been decided either in the context of the original statute nor based on the amendments to it.

        Severability should be assumed (there’s a general severability statute), but that presumption can be rebutted if the statute wouldn’t function as intended.

        1. Right. A lot of the severability analysis pretends that the joint dissent in NFIB was actually the law.

        2. The individual mandate was declared constitutional—case closed. The law at issue here is the Trump tax cut and I believe it will most likely be declared unconstitutional pursuant the lower court’s rationale. If a new law can make an old law unconstitutional then Republicans must be pretty pissed because that means Republicans could have very easily made Medicare and SS and Great Society programs unconstitutional by passing a law with 51 senators.

          1. It isn’t a new law making an old law unconstitutional it’s replacing an old law that was found to be constitutional with a new law that differs from the old law with respect to the reason the old law was found constitutional.

            1. The old law is constitutional. The Trump tax cuts don’t replace Obamacare they are merely modifying the tax rate. If the new law is unconstitutional then that merely means the old law is no longer modified by the new law.

      3. The NFIB majority did not reach the severability of the mandate question.* They did not have to because they found it constitutional. But the government, Judge O’Connor, and the Fifth Circuit rely pretty heavily on the NFIB “joint dissent” for the opinion that it is not severable. Indeed, they really go out of their way to pretend something that is not the law is actually the law.

        *They did say that Medicaid’s severability clause applied to the Medicaid expansion, which is how they were able to invalidate the coercive aspects of the expansion without bringing the rest of the law down.

      4. “If the DoJ thought that the better view was that Congress intended that the law should fall wth the mandate, that is not disrespecting Congress.”

        But Congress enacted the rest of the law with the mandate removed, too.

          1. Congress didn’t think the law was unconstitutional without the mandate. Your intent theory depends on Congress intending in the event this part is unconstitutional, the rest must fall. SCOTUS doesn’t get to entertain that theory unless it’s obvious, and the only obvious thing here is that Congress intended for the rest of the ACA to remain in effect.

            Your theory is worse, here, since the change couldn’t possibly have been intended only if held up. The change removes the very constitutional infirmity that is now being asserted. Congress intended for its entire law to be thrown out the door when it decreased its scope? It makes no sense

  3. Well, the inclusion of a severability clause was actually considered, and deliberately not included.

    1. Could you elaborate on (1) your understanding of how and whether it was considered, but why it was deliberately not included and (2) how you think this affects the outcome in the case?

    2. In the Trump tax cut? Because the individual mandate was already declared constitutional so the ACA is not the law at issue here.

  4. They apparently recognized that taking such a position would cut against longstanding Justice Department positions and require embracing weak and implausible legal theories.

    Your view of the Barr/Azar position is, to put it politely, highly idealized, as if they were following some deep principle. They are not. From CNN:

    Barr and other top advisers have argued against the hard-line position for some time, warning it could have major political implications if the comprehensive health care law appears in jeopardy as voters head to the polls in November.

    CNN, at least, does not mention any of the high-minded motivations you ascribe to Barr.

    1. CNN, at least, does not mention any of the high-minded motivations you ascribe to Barr.


    2. I think CNN wins that battle. Barr’s highest ideal seems to be servicing Trump’s political ends.

    3. This particular quote that you quoted very clearly has nothing to do with “highly idealized” or “high-minded motivations” you ascribe to Porofessor Adler:

      would cut against longstanding Justice Department positions and require embracing weak and implausible legal theories

      1. High-minded or not, Adler is clearly claiming that Barr is motivated by some neutral principles, rather than political advantage, when the article says no such thing.

        If he wants to argue that, then let him provide some support. I dare anyone to show that Barr is reluctant to pursue “weak and implausible legal theories,” or violate longstanding DOJ positions if doing so would help Trump.

        1. Barr understands Trump foolishly surrounded himself Bush loyalists like Tillerson and McGahn and Sessions and they served him poorly. I oppose Trump but the Bush loyalists that infect the Republican Party are worse than Trump.

        2. So now you’re trying to walk back that “high minded” bit of nonsense by rephrasing it as “neutral”. Hogwash. The OP made no such claim.

          1. I don’t think bernard11 is the one weaseling here. You are. We have two theories on Barr’s position :

            (1) It’s based on legal principles
            (2) It’s based on trump’s political interest.

            Whether “high minded” is hyperbole or not, that’s the distinction between Professor Adler’s take and CNN’s – just like bernard11 said.

            So then you look at Barr’s performance as AG, and CNN’s opinion looks pretty solid, doesn’t it?

            1. You have to be really stretching to think that Adler or anyone but a partisan hack thinks Barr’s is high-minded. You have to be a partisan hack to say so.

            2. A third possibility comes to mind: Barr believes his advice is the legally sound choice, but he tried taking that path before and failed to convince the White House. This time around he is going to try to sell it as the politically astute position to take, believing his audience to be more receptive to that argument.
              If so it is a dangerous strategy, the President doesn’t react well when he gets the idea someone is trying to manage him.

              1. That’s possible. Do you have any evidence to support it?

          2. I said Adler’s view of Barr’s reasons was idealized, which it is. There is nothing in the CNN report to suggest that his motives are principled in any way.

            By “high-minded” I didn’t mean noble, just based on considerations other than “What’s good for Trump.” I guess I have to admit that that’s a pretty low bar.

            If you want to reflexively nitpick my choice of adjective go aheD.

  5. This is a pretty open and shut case—if the Trump tax cut doesn’t have a severability clause then the entire law is unconstitutional because of this clearly unconstitutional zeroing out of the individual mandate. Quite frankly the Trump tax cut is pretty dumb in light of these multi trillion dollar deficits so good riddance.

    1. I don’t think you need a severability clause to see that Congress intended the remainder of the law to stay in effect. Of course this also cuts in favor of severability of the rest of the ACA.

      1. ACA was declared constitutional. The law at issue here is the Trump tax cut. A new law can’t make an old law unconstitutional. If it could Republicans could make Medicare and SS unconstitutional by passing an unconstitutional law related to those laws.

        1. Actually, large swathes were declared unconstitutional by a 7-2 margin. Those were severed and the remaining saved, despite no severability clause.

          Indeed, the idea of severability violates the presentment clause of the constitution.

          1. The ACA is not at issue here. I believe the Trump tax cut will be declared unconstitutional and all of it will fall due to lack of severability clause.

            1. The two are inseparable logically, for if the Trump cuts fall, all severability decisions fall.

          2. They actually used the Medicaid severability clause for that portion of the opinion.

            1. Actually Roberts was persuaded by RBG’s faulty rationale. RBG believed they individual mandate was super important while Roberts initially wanted to declare it unconstitutional but severable. The individual mandate was clearly innocuous because in a few months Obamacare will hit its all time high enrollment thanks to Trump’s mishandling of this outbreak. Guess who wins biggest?? The Kushner family.

    2. Ah, yes, the bogus belief that deficits are somehow ameliorated by taking even more money from citizens.

  6. Is it unreasonable to expect that high level folk could discuss something without FOUR DIFFERENT PEOPLE leaking to CNN?

    I’m not blaming CNN for trying to find out, I’m blaming staff for leaking.

    1. You can definitely make a case Trump is plagued by leaks more than average. Of course, the issue is why. Why have former underlings described him as an ‘Idiot,’ ‘Dope,’ ‘Moron’ ? Why does he command less respect and loyalty than predecessors? Why have sources been so eager to describe his tantrums, snits, childish raging and lazy work habits?

      There opinions tend to split. One side finds him a godly figure pestered by petty mortals thwarting his glorious mission (though God help them if pushed to describe what this “mission” entails, beyond cartoon theatrics).

      The other side has a simpler theory. We’ve all had a buffoonish inept bungling clown of a boss at least once in our life. Like that.

      1. Another reason is simple office politics. Maybe someone wants to make Barr look bad, or good, depending on the intended audience.

  7. If there was any reason to believe that the legal system adheres to principles, one might perhaps take your position.

    As it is, one should take any political victory one can wring out of the legal system. And, if, as a bonus, this actually does cause regulations and laws to be struck down willy-billy, even better.

      1. If you are a state worshipper, then it must seem like nihilism to you when people strategize against authoritarians.

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