In policy change, Trump DOJ now asking Supreme Court to throw out ObamaCare entirely

Wait, you’re asking. Didn’t the Trump Administration always want to get rid of ObamaCare?

As a matter of policy, absolutely. But that’s not always the same thing as positions you take in court. Generally speaking, the federal government defends existing federal law in court, even if it’s a law the current administration does not agree with. Why? Because the separation of powers works better if one branch doesn’t undermine its own prerogative.

Think about it like this: A Republican administration signs a massive tax cut. A liberal group sues. In the next election, a Democrat wins and instructs the new Democrat attorney general to settle the lawsuit in such a way that the tax cut is essentially nullified. That’s not how we want laws changed. If the government defends the law but the Supreme Court strikes it down anyway, then it’s a matter of the judicial branch checking the executive, as opposed to the executive essentially sabotaging itself.

That’s why the Trump DOJ has, up until now, taken the position that the courts should uphold the legality of ObamaCare, if not its wisdom. But that has changed, as the DOJ is now asking SCOTUS to uphold the ruling of a district judge in Texas who ruled that the entire law needs to be thrown out:

It’s a major shift for the Justice Department from when Jeff Sessions was attorney general. At the time, the administration argued that the community rating rule and the guaranteed issue requirement — protections for people with pre-existing conditions — could not be defended but the rest of the law could stand.

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After the Justice Department took that position, federal District Judge Reed O’Connor struck down the entire law and the case is currently before a federal appeals court.

Trump and the administration repeatedly promised — particularly leading up to the midterm election — to protect people with less-than-perfect medical histories.

But this shift in the Justice Department’s stance doubles down on stripping away all the protections that were a hallmark of the landmark heath reform law.

The administration’s move didn’t only startle supporters of the law. One former official who worked under Sessions told CNN Monday night that he, too, was surprised by the new position.

Because the case is before one of the most conservative appellate courts in the country, it almost guarantees that the issue will return to the newly solidified conservative Supreme Court at some point. President Barack Obama’s former solicitor general, Donald Verrilli — who once defended the law before the Supreme Court — is now defending the law on behalf of the Democratic-led House.

Let’s recall the twists that brought us here:

In the 2012 case NFIB v. Sebelius, four of the Supreme Court’s conservative Justices wanted to throw out the entire law based on the idea that Congress has no constitutional authority to mandate citizens purchase a private product, namely health insurance. The fact that ObamaCare included a fine for violating that individual mandate is what led those four conservatives to that position.

Chief Justice John Roberts, apparently not wanting the Court to be the one to solve the ObamaCare conundrum, came up with a novel way to side with the Court’s four liberals and save the law. He decided that the individual mandate fine was not a fine at all, but was a tax, and that buying health insurance was simply a way to earn a tax exemption. This was in spite of the fact that the Obama Administration had insisted during the political portion of the debate that it was absolutely a fine and not a tax, only to shift its stance once it had to defend the law in court.

But by defining that portion of the law as a tax, Roberts decided he could uphold the law based on Congress’s authority to levy taxes, which is clear from the 16th Amendment.

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Fast forward to 2017, when Congress repealed the “tax,” but left the individual mandate in place. With the tax gone but the mandate still in the law, Judge O’Connor understandably ruled that the mandate now cannot be said to be within Congress’s authority. It’s not a tax anymore. It’s just a mandate, and Congress has no authority to impose that mandate.

This is the position with which the Trump DOJ now agrees, and because the Appeals Court that will get the case next is in a very conservative district, the thinking is SCOTUS will be asked to hear an appeal of yet another ruling that says ObamaCare has to go in toto.

So what will the Supremes do? Remember, although the media are portraying the Court as more conservative than ever since Brett Kavanaugh has replaced Anthony Kennedy, that’s not necessarily true with respect to ObamaCare. Kennedy was part of the minority of four that wanted to throw ObamaCare out, so if Kavanaugh holds the same position he’s only holding serve. This really comes down to one man, and that’s Chief Justice Roberts.

The change in the law seems almost designed to take away his original rationale for saving ObamaCare, as if to say, “OK, Mr. Chief Justice, it’s not a tax anymore!” On first glance, it would seem he has little choice but to now join his conservative colleagues and throw out the law – based on his own original legal reasoning.

But is that really true? Roberts could rule that the tax hasn’t necessarily been eliminated but simply zeroed out, meaning there’s nothing stopping a future Congress from establishing a greater-than-zero amount for it. That seems like a disingenuous argument, but Roberts might not appreciate the fact that Congress passed legislation that seemed designed to force him to take a position he doesn’t want to take.

And in the end, I’m not sure it matters that much which side the Trump DOJ takes. The House Democrats will still send Donald Verilli to defend the law, and the Justices will decide the case based on what they think the law is, not on who’s arguing what.

Roberts did not want the legacy of the Roberts Court to be one that stepped all over the legislative branch, famously saying, “It is not our job to save the public from their political choices.” He may be equally reluctant to do so now, even if the change in the law makes it harder for him to justify saving ObamaCare once again.