Outside the Beltway

Trump DOJ Won’t Defend Obamacare ‘Must-Carry’ Mandate

Longstanding policy that the Justice Department defend an Act of Congress if there is "any reasonable argument" it is constitutional is being ignored.

James Joyner · Wednesday, June 13, 2018 · 6 comments

In a break with historical precedent, the Justice Department will not defend a lawful Act of Congress from lawsuit. A top DOJ attorney has resigned in protest.

WaPo (“Senior Justice Dept. lawyer resigns after shift on Obamacare“):

A senior career Justice Department official has resigned in the wake of the Trump administration’s move to stop defending a key provision of the Affordable Care Act, a departure that highlights internal frustration generated by the decision, according to people familiar with the matter.

Joel McElvain, who has worked at the Justice Department for more than 20 years, submitted his resignation letter Friday, the morning after Attorney General Jeff Sessions notified Congress that the agency will not defend the ACA — the 2010 law known as Obamacare — against lawsuits brought by Republican-led states challenging its requirement that most Americans carry health insurance.

As a presidential candidate, Donald Trump campaigned on the promise of repealing Obamacare, but that effort faltered in Congress. Last year, lawmakers amended the law, nullifying the provision requiring people to carry insurance. That takes effect in 2019.

The Justice Department’s decision last week reversed years of legal work McElvain and the Justice Department had performed on the issue.

McElvain and his team were honored in 2013 with the Attorney General’s Award for exceptional service defending the legislation in court. A Justice Department spokeswoman confirmed his resignation takes effect in early July. McElvain declined to comment.

[…]

Sessions told the court and Congress that the Justice Department adopted its position with Trump’s approval. While he acknowledged that the decision not to defend an existing law deviates from historical practice, Sessions said the move is not unprecedented.

“As you know, the executive branch has a long-standing tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense,” Sessions wrote. “I have concluded that this is a rare case where the proper case is to forgo defense” of part of the ACA.

My initial instinct is that this is rather standard, even expected practice. New administrations often bring new priorities and the courts have long recognized the prerogative of Presidents to order selective enforcement of the law. For example, President Obama simply ordered the Department of Homeland Security not to enforce immigration law against so-called “Dreamers.”

But this is actually something different altogether. As Sessions himself concedes, DOJ is expected to, as a matter of course, defend duly-enacted statutes in court. New York Magazine legal analyst Cristian Farias explains,

As part of the president’s duty to look out for the faithful execution of the laws, the federal government is charged with defending duly enacted statutes as they exist on the books — no matter the Congress that passed them or the chief executive who signed them. That means that whenever someone challenges a statutory scheme in court and calls for its invalidation, the executive branch generally rises to its defense — even if, as a matter of policy, the president is not a big fan of the law. Under enduring Department of Justice guidelines, “any reasonable argument” that would support upholding the law will do. Only in rare, principled circumstances may our law enforcers decline to defend and enforce the law.

Indeed, Sessions and many Congressional Republicans were furious when the Obama Justice Department refused to fight for the Defense of Marriage Act:

At a March 2011 confirmation hearing for the Solicitor General, he said that Holder should have stood up to Obama and resigned, rather that stopping his DOMA defense. “[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.”

In the DOMA case, though, in addition to Obama’s having come out in support of same-sex marriage, he and Holder argued that there was a good reason to think the law was unconstitutional pursuant to a string of recent rulings by the Supreme Court and appellate courts. And, indeed, SCOTUS would declare DOMA and state-level laws restricting the ability to marry on the account of sex unconstitutional two years later.

Sessions’ argument here is much weaker. As readers will recall, the Supreme Court has ruled on the mandate, arguing that it is Constitutional on the grounds that Congress has the power to tax. Many of us were frustrated with that reasoning, given that the Obama administration specifically argued that the mandate was not a tax. Regardless, it’s the law of the land and SCOTUS has ruled.

Recall, though, that the Congress recently repealed the penalty for non-compliance with the must-carry provision, effective next year. Therefore, Sessions argues, come 2019 the provision will become retroactively unconstitutional, since the “tax” would be gone. But that’s rather silly. First, it’s not yet 2019. Second, whether it’s a tax or not really becomes irrelevant if there’s no penalty for non-compliance. And recall that the standard is that DOJ should enforce existing law if they can muster “any reasonable argument” that it’s constitutional, lot any argument that it’s not.

Indeed, some go beyond even that. In researching this post, I stumbled on a July 1980 memo from Benjamin R. Civeletti, President Jimmy Carter’s last Attorney General, arguing that, as a starting position, the DOJ ought defend even laws it thinks unconstitutional.

I concur fully in the view, expressed by nearly all of my predecessors that when the Attorney General is confronted with such a choice, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress. That view is supported by compelling constitutional considerations. Within their respective spheres of action the three branches of government can and do exercise judgment with respect to constitutional questions, and the Judicial Branch is ordinarily in a position to protect both the government and the citizenry from unconstitutional action, legislative and executive; but only the Executive Branch can execute the statutes of the United States. For that reason alone, if executive officers were to adopt a policy of ignoring or attacking Acts of Congress whenever they believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system.

At the same time, I believe that if Congress were to enact a law requiring, for example, that the A ttorney General arrest and imprison all members of the opposition party without trial, the Attorney General could lawfully decline to enforce such a law; and he could lawfully decline to defend it in court. Indeed, he would be untrue to his office if he were to do otherwise. This is not because he has authority to “deny the validity of Acts of  Congress.” It is because everything in our constitutional jurisprudence inescapably establishes that neither he nor any other executive officer can be given authority to enforce such a law.

Now, Civetti’s interpretation is extreme. Legal scholar Carlos Ball points out in a 2011 law review article that “every recent president” has refused to defend some statute they believed unconstitutional. But, he argues, there are a series of tests that administrations have typically applied, including whether the courts have already weighed in on the matter.

Regardless, not only is Sessions not following the spirit of the practice outlined by Civetti, I have my strong doubts whether he would decline to enforce the law Civetti cites as an exigent case when he should not.