Welcome back to Trump Watch. A top appellate lawyer shared his thoughts this week on DOJ's decision to drop it's defense of the Affordable Care Act, and he's not a fan. Plus, Democrats' simmering war with the Trump administration over access to records related to special counsel Robert Mueller III's report hit a high mark. We have the highlights and other headlines, below. Thanks as always for reading, and remember you can always email me at [email protected].

Paul Clement, speaking at the Federalist Society's 7th Annual Executive Branch Review Conference. Photo: Diego M. Radzinschi/ALM

Clement Makes a Case for Defending the ACA

You can count Kirkland & Ellis' Paul Clement among the conservative lawyers who disapprove of the Justice Department's decision to no longer defend the Affordable Care Act.

Clement, speaking during a panel Wednesday at the Federalist Society's annual executive branch review conference in Washington, said there are potential costs to the legal system when the Justice Department doesn't defend federal laws it has a duty to advocate for. He drew parallels to the Justice Department's decision under the Obama administration to no longer defend the Defense of Marriage Act, the 1996 law that prohibited federal recognition of same sex marriage. Clement, who advocated in support of the DOMA, lost in the Supreme Court in the case United States v. Windsorin 2013.

“I do worry that this is something where we could get into a race to the bottom, or the top,” Clement said, adding that there were “coherent theoretical” arguments to be made that the executive branch shouldn't always have to defend laws it disagrees with. “But that hasn't been the policy of the Justice Department for, essentially, ever. The tradition has been that cases that don't implicate executive power, you make an argument, if there is a good faith argument to be made, in defense of the statute,” he said.

The Justice Department has faced plenty of heat since it dropped its defense of key parts of the Obama-era health law last year in the wake of a tax law passed in December 2017. The Trump administration has dug in since then, notifying a federal appeals court this month that it agreed with a lower court's interpretation that the entire law is unconstitutional and should be struck down.

U.S. District Judge Reed O'Connor of the Northern District of Texas ruled in December that the law—which zeroed out the penalty imposed by the ACA's individual mandate—rendered the entire health care law unconstitutional. Legal scholars have pilloried O'Connor's ruling, calling it “embarrassingly bad.”

Clement is not involved in the Fifth Circuit's Affordable Care Act case. And he's no fan of the health care law, as he acknowledged in his remarks Wednesday. Clement argued against the Affordable Care Act at the Supreme Court soon after its adoption during the Obama administration.

“I think my litigation past shows I'm not a super fan of the Affordable Care Act as a policy matter or as a federalism matter, but I think there's an argument to be made that in both of those cases, the Justice Department should have stayed with its traditional policy of defending acts of Congress even though they're quite unpopular politically with the administration that's in place at that point,” Clement said. “And I think that there costs to the system if the Justice Department doesn't engage in, doesn't kind of uphold its traditional duty to defend.”

Clement is also counsel of record—against the Justice Department—in a pending health care case at the Supreme Court.

Clement, a former solicitor general during the George W. Bush administration, represents Moda Health in its quest to force the government to pay more than $12.3 billion in damages to health insurers through the Affordable Care Act's “risk corridor” program. Participating in the Affordable Care Act's exchanges presented business risks for health insurers, and the risk corridors program, operating from 2014 to 2016, was designed to use cash from thriving health plans to reimburse other health providers whose costs exceeded premiums.

The government claimed in a filing Wednesday that any obligation to make those payments was voided when Congress “expressly prohibited” the Health and Human Services Department from continuing to make payments.

Clement was speaking on a panel Wednesday that focused on how the federal government litigates cases, included discussion of the rise of nationwide injunctions under the Trump administration, and reversing legal positions. The event was moderated by Jesse Panuccio, who recently left his job as the Justice Department's acting associate attorney general, and included appellate lawyers such as Gene Schaerr of Schaerr | Jaffe. You can watch the full panel event here.

>> Scott Keller, a former Texas solicitor general now at Baker Botts, described how state attorneys general litigation has swelled in the Trump era. He noted that state plaintiffs have sued the Trump administration more in his first two years in office than they did in the eight years of either the Obama or George W. Bush administrations. “This seems to be possibly a new normal,” Keller said, “and if this is a new normal, I think the Supreme Court is quickly going to have to clarify, when do you get nationwide injunctions.”

Keller, who was involved in the legal fight when Texas won nationwide relief enjoining the Obama administration's program deferring deportation for certain parents of citizens and immigrants, said courts have begun citing that case to embrace nationwide injunctions and that the Supreme Court will likely have to take up the issue soon to clarify.

>> Neil Eggleston, a former Obama White House counsel and now a Kirkland & Ellis partner, noted that while there is certainly an increase in state-led litigation and injunctions during the Trump administration, he “felt it pretty intensely” during Obama's presidency. He noted states successfully blocked signature issues for the Obama administration, including Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA, the Clean Power Plan, and various other environmental and labor issues.

>> Clement didn't weigh in on the wisdom of national injunctions, but did observe how they have placed pressure on the Supreme Court. “You have one district court judge in probably one not terribly representative district who's enjoining the policy nationwide. And I think from the Supreme Court's perspective at least, that's supposed to be the Supreme Court's job— to decide as a uniform nationwide policy whether some important government policy is unconstitutional or not. And so when a district court judge sort of takes it upon himself or herself to enjoin a policy nationwide, it certainly makes sense for the solicitor general to go to the Supreme Court and get some kind of interim relief and the solicitor general has had to do that on a number of occasions either before or after the circuit court has declined to do anything about the nationwide injunction. But it puts a lot of pressure on the system.”

He said the Supreme Court, as a result, is often asked to consider cases before they've fully cooked. He said he expected the justices to squarely address the issue of nationwide injunctions in the next couple of years, predicting it would place “serious limits” on the practice.

Speed Reads:

>> Barr Was Just Held in Contempt, as the Case Against Eric Holder Settles.“The U.S. House Judiciary Committee vote Wednesday afternoon to hold U.S. Attorney General William Barr in contempt was quickly followed by an announcement that Congress and Main Justice had reached a settlement in a subpoena dustup involving Eric Holder, the first sitting attorney general held in contempt of Congress.” (National Law Journal)

>> The Court Handling Trump's Lawsuit Must Move at Breakneck Speed.“President Trump has already filed a novel lawsuit to block his own accounting firm from complying with a congressional subpoena for financial records. Whatever the case or lack thereof to Mr. Trump's suit, he deserves his day in court, just as any plaintiff would. But the American people deserve that day to come quickly, given the obvious stakes for Mr. Trump's re-election bid in 2020. For a court to be conscious of timing isn't a political act — it's simply responsible,” write Neil Eggleston and Georgetown Law Institute for Constitutional Advocacy and Protection executive director Joshua Geltzer. (New York Times)

>> In Trump vs. California, the state is winning nearly all its environmental cases. “In its rush to delay, repeal and rewrite rules it considers unduly burdensome to industry, the administration has experienced significant setbacks in court. Federal judges have sided with California and environmental groups in cases concerning air pollution, pesticides and the royalties that the government receives from companies that extract oil, gas and coal from public land.” (LATimes)

>> Justice Department Wins Lawsuit Demanding Radio Station Register As Russian Agent. “The United States Justice Department has prevailed in a lawsuit against RM Broadcasting, the owner of a Washington, D.C.-based radio station that is broadcasting Sputnik International. On Tuesday, a federal judge in West Palm Beach, Fla., granted a motion for judgment on the pleadings to the DOJ in a groundbreaking case over the Foreign Agents Registration Act.” (Hollywood Reporter)