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The Government Just Agreed to Gut Obamacare and Three DOJ Lawyers Don’t Seem to Be Happy About It


In February, 20 states filed a lawsuit seeking the end of the Affordable Care Act, aka Obamacare. This came after President Donald Trump had already eliminated the penalty attached to the individual mandate that required to Americans to get health insurance. Ironically, it was the penalty that caused uproar over Obamacare, but its removal was the basis for the states’ argument that Obamacare is now unconstitutional: without the mandate being tied to a tax (which is how the Supreme Court defined the penalty), it’s no longer based on Congressional authority and now the whole thing needs to be thrown out.

Perhaps not surprisingly, the federal government decided not to fight the states on this, and in a brief filed Thursday evening they said, “the United States agrees with the Plaintiffs that Section 5000A(a) must now be struck down as unconstitutional in light of the amendments that were made to it[.]” They also agree that the provisions in Obamacare that require insurance to issue plans to any applicant regardless of any pre-existing conditions, and for prices to be equal for everyone in a given territory regardless of health condition are directly connected to this, so they have to go as well.

The only things that the federal government is arguing with the states’ about are 1) when those provisions needs to fall (the states want an injunction to end it immediately, while the feds argue that it should remain until January 1, 2019, when the repeal of the penalty actually goes into effect) and 2) whether the rest of Obamacare can remain (states say no, feds say yes).

One might find it odd that the Department of Justice is agreeing that parts of a major law are unconstitutional. Attorney General Jeff Sessions defended this move in a letter, claiming that this position is simply a matter of “statutory interpretation,” regarding those positions, and because he is not saying that Obamacare as a whole is unconstitutional, it “therefore does not implicate the Department’s general practice of defending the constitutionality of federal law.

Nevertheless, it looks like certain DOJ lawyers aren’t too happy about it. Right before the United States submitted their court filing that agreed that parts of Obamacare are unconstitutional, attorneys Joel McElvain, Eric Beckenhauer, and Rebecca Kopplin filed a motion to withdraw their appearances as counsel for the federal government in this case (other attorneys who were already assigned to the matter are remaining).

The Justice Department said in a statement to Law&Crime, “It is customary when the department changes positions on any case to switch out the lawyers who had taken the previous position. New position, new team.”

Nevertheless, former Acting U.S. Solicitor General Neal Katyal was taken aback by this.

“Something is bad and afoot,” he said. “I’ve not seen anything like this that I can recall.”

Katyal went on to say that he predicts that we’ll find out more soon. Law&Crime will be monitoring and will provide more information should it become available.

Note: This article has been updated to include the Justice Department’s statement.

[Image via PBS screengrab]

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