By far the most popular aspect of the Affordable Care Act, aka Obamacare, is the ban on insurance companies rejecting people for having preexisting conditions. The Trump administration is not only not going to defend that provision of the law in court anymore, they are asking a federal judge to strike it down as unconstitutional.
The Trump administration said in a court filing late Thursday that it will no longer defend key parts of the Affordable Care Act, including the requirement that people have health insurance and provisions that guarantee access to health insurance regardless of any medical conditions…
The administration said it agrees with Texas that the so-called individual mandate will be unconstitutional without the fine. It also said that provisions shielding people with medical conditions from being denied coverage or charged higher premiums and limiting how much insurers can charge older Americans should fall as well.
But it said the rest of the law, including Medicaid expansion, can remain in place.
This is a completely irrational argument. Even if the mandate to buy insurance were unconstitutional, that doesn’t mean the ban on preexisting conditions would be unconstitutional. One simply has nothing to do with the other. And they can’t argue that this provision is not severable from the larger law because they’ve already agreed that the Medicaid expansion part of the law is constitutional and thus should not be overturned, in this very same case. So as a matter of law and constitutional doctrine, their argument is simply ridiculous.
But it’s also incredibly hypocritical. Remember the outrage when the Obama administration said that it would no longer defend Section 3 of the Defense of Marriage Act? OMG! Obama is subverting the rule or law and undermining all of our judicial norms by refusing to defend the law! In fact, they went much further, lying to make it sound like refusing to defend the law in court meant refusing to enforce the law. In fact, they had to keep enforcing the law in order for the legal challenge to proceed. They never stopped enforcing it.
Hey, I wonder what Attorney General Jeff Sessions had to say about the DOJ not defending the law in that court case? Let’s jump into the Wayback Machine with Professor Peabody:
“[T]he Attorney General should have told the President, ‘I know you may have changed your mind, Mr. President, but this is a statutory law passed by the Congress of the United States, it’s been upheld Constitutionally and it has to be defended. We cannot fail to defend that statute. And then what happens? I think what happens is the President says, ‘okay, I wish we could….’ And I think he would have backed off. If not, then you have to resign.”
So now that you’re in exactly the same situation, you’ll be telling Trump that you will continue to defend the law, just as you demanded of Eric Holder, and if he refuses we can expect your resignation immediately? Right? Attorney General Sessions, are you there? I’m sorry, I can’t hear you. You’re going to do that, right? Oh, of course you aren’t. Because you’re a little Keebler hypocrite.
But he’s not the only one. The Republican-led House passed a resolution condemning the Obama administration for not defending the law and among its sponsors were now-Vice President Mike Pence, Secretary of State Mike Pompeo, and OMG Director Mick Mulvaney. I expect you all will be resigning in protest too, right? Yeah, I didn’t think so.