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‘This is Literally a Killer Brief’: Lawyers Say Trump Admin Brief to Invalidate Obamacare Amid Pandemic Is ‘Unconscionable’


Donald Trump Coronavirus Briefing Reopen Country America

The Trump administration on Thursday asked the U.S. Supreme Court to invalidate the Affordable Care Act (ACA), otherwise known as Obamacare. It’s a move that would effectively eliminate health insurance for tens of millions of people as a global pandemic rages. In an 82-page brief that was not particularly well-received by legal experts, the Justice Department contended that because the law’s individual mandate was ruled unconstitutional, which meant that the “entire ACA must fall.”

The administration’s latest attempt to invalidate the ACA was filed on the same day that the U.S. set a new record for a single-day increase in new cases of the COVID-19.

Outgoing U.S. Solicitor General Noel Francisco penned the brief, which argued that when Congress reduced the individual mandate penalty to zero with the 2017 Tax Cuts and Jobs Act (TCJA)–a move the Trump administration emphatically backed—the individual mandate was rendered unconstitutional as an application of the legislature’s taxing power. Francisco noted that the high court only upheld the ACA by reasoning that the mandate effectively acted as a tax, concluding that the court’s previous holding no longer justified upholding the law “as merely a predicate for tax liability.”

“[T]he saving construction of Section 5000A that the Court adopted in [NFIB v. Sebelius] but is no longer tenable in light of Congress’s subsequent action in the (TCJA),” Francisco wrote, pointing out that the TCJA “preserves the ‘requirement to maintain minimum essential coverage.’”

But, putting forth an argument that combined elements of severability doctrine, legislative history, and congressional intent, the administration claimed that in passing the TCJA, the 2017 Congress actually intended to repeal the ACA in its entirety because the 2010 Congress never would have passed the law without the mandate.

“The individual mandate cannot be severed from the remainder of the ACA. Congressional findings incorporated into the ACA’s text clearly indicate that Congress would not have adopted the guaranteed-issue and community-rating provisions absent the individual mandate’s requirement to purchase insurance,” Francisco wrote. “By retaining the mandate (even without a penalty) and leaving undisturbed its prior express findings, Congress adhered to the view that the individual mandate and guaranteed-issue and community rating provisions are interrelated. That indicates Congress’s intent: Congress would not have ‘wanted’ the guaranteed-issue and community-rating provisions ‘to stand alone,’ either in 2010 or in 2017.”

This argument from the DOJ appears to not only misrepresent Congress’s express actions, but also directly undermine the Chief Executive, as President Donald Trump has repeatedly celebrated having eliminated Obamacare’s individual mandate.

Georgetown University Law Center professor Marty Lederman pointed out the opposing views within the Executive branch.

“Donald Trump v. his own Solicitor General: Compare [Trump] on May 6 (and on countless other occasions):  ‘We got rid of the individual mandate’ in 2017 so that ‘you don’t have [to] buy health insurance at a ridiculous price for not good health insurance,’ with Trump’s SG to the Supreme Court last night: The 2017 tax law that Trump signed created an ‘individual mandate’—’a straightforward command to maintain [minimum health insurance] coverage’ that ‘law-abiding citizens must comply with,’” Lederman wrote.

The professor then reiterated that the DOJ’s argument was based on an “absurd distortion” of the facts surrounding the ACA and the TCJA.

“In this case, Donald Trump is right!” Lederman wrote, “and therefore his SG’s entire argument about the invalidity of the ACA is dead in its tracks b/c it’s premised on an absurd distortion of what Trump and Congress did in 2017.”

Referring to the DOJ’s submission as “literally a killer brief,” Supreme Court litigator and former acting U.S. Solicitor General Neal Katyal referred to the administration’s position as a “dereliction of duty.”

“Make no mistake about it: the Trump Administration just asked the Supreme Court to gut all of the Affordable Care Act, and its insurance & protections for those with preexisting conditions. They absolutely didn’t have to file such an absurd brief. They want to take it away from you,” Katyal wrote. “This is a dereliction of duty, as DOJ is supposed to defend laws of Congress, not actively try and do Trump’s bidding to gut them, and it’s also just a betrayal of Americans’ interests, during a pandemic no less. Unconscionable.”

University of Michigan law professor Nicholas Bagley and former DOJ attorney Sasha Samberg-Champion were also critical of the DOJ’s failure to properly address why the state AGs have standing to properly file a legal challenge on the issue.

Addressing the widespread criticism about its attempt to invalidate the landmark health insurance law, the White House said that a global pandemic “does not change what Americans know: Obamacare has been an unlawful failure and further illustrates the need to focus on patient care.”

Read the DOJ brief at length below:

DOJ Healthcare Brief by Law&Crime on Scribd

[image via MANDEL NGAN/AFP via Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.