After Catching Bus, Dog Still Doesn’t Know What To Do. But The Bus Just Got Bigger!

March 26th, 2019 by Tom Lynch

In February, 2018, a Texas-led coalition of 20 states sued the federal government claiming the Affordable Care Act is unconstitutional in its entirety. The states argued that after Congress in December 2017 gutted one of its major provisions, a financial penalty for not having health insurance, known as the “individual mandate,” the rest of the law became unconstitutional.

In June, 2018, the US Department of Justice announced it would not defend the suit, which prompted a counter-coalition of states, led by California, to step in to defend the law. In the Brief, the Trump Administration, while refusing to defend, had agreed the individual mandate was unconstitutional, but argued this only invalidated the ACA’s preexisting condition protections and not the remainder of the ACA. This was ironic, indeed, because the part of the ACA with the most public popularity is the part protecting preexisting conditions. Attorney General Jeff Sessions pointed out he had made the not-to-defend decision after conferring with the President.

In December, Judge Reed O’Connor, of the 5th Circuit Court, ruled in favor of the Texas coalition and declared the entire Affordable Care Act unconstitutional. Very few legal scholars, make that nearly none, thought Judge O’Connor’s ruling would stand. Many died-in-the-wool conservatives, make that nearly all, thought the same. We wrote about this in a “Dog Catches The Bus. Now What?” post.

Last night, the Department of Justice sent a two-sentence letter to the U. S. Court of Appeals for the Fifth Circuit saying the DOJ now supports Judge O’Connor’s ruling that the entire ACA be struck down. Further, it will shortly file a Brief endorsing the decision. Here’s the letter:

The Department of Justice has determined that the district court’s judgment
should be affirmed. Because the United States is not urging that any portion of the
district court’s judgment be reversed, the government intends to file a brief on the
appellees’ schedule.

So, in two sentences, the DOJ went from everything in the ACA, except the preexisting conditions part, is constitutional, to everything is unconstitutional.

Reaction in Republican circles has not exactly been one of untold delight. In fact, so far, it’s been as quiet as midnight in Death Valley. So, what was William Barr thinking and why did his minions send the midnight missive?

Here’s a thought. Since most of the heavy money is on Judge O’Connor’s ruling being overturned somewhere along Appellate Way, could the DOJ have sent its billet doux with the intention of showing its ultra-conservative allies that it’s with them all the way, while all the while realizing it will never have to put the ACA toothpaste back in the tube? Think about it.

After all, you have to admit it’s easier to think about that than about what will happen if O’Connor’s ruling becomes the law of the land.

We’re goin’ right straight back to 2010
And start the healthcare war all over again!

God help us.