ACA Demonstrators celebrate the court’s ruling for the ACA in King v. Burwell on June 25, 2015. Credit: Diego M. Radzinschi/ALM

The U.S. Justice Department on Wednesday urged a federal appeals court to strike down the entirety of the Affordable Care Act, arguing that the elimination of the key individual mandate provision renders the entire Obama-era law unconstitutional.

The government’s filing—in support of Texas and other Republican-led states challenging the law—was not unexpected. The Trump-era Justice Department had earlier announced its new intent to argue that the entire health care law should be declared void. The U.S. government’s brief fully supports a Texas federal trial judge who last year declared Obamacare unlawful.

Wednesday’s filing points to the U.S. Supreme Court’s ruling in National Federation of Independent Business v. Sebelius, which upheld the Affordable Care Act in 2012 on the basis that the individual mandate—which penalized those who did not buy health coverage—could be construed as an exercise of Congress’ taxing power.

While noting that Main Justice earlier had told the district court that the individual mandate was severable from the whole law, the brief said the government changed its mind “upon further consideration.” The only justices to reach severability in Sebelius—in a joint dissent—had said the provisions were highly interdependent and would not “function in a coherent way and as Congress would have intended” without the other provisions.

The government’s brief was filed by August Flentje, a veteran Justice Department appellate lawyer. Flentje, who made his appearance in the case earlier in the day, was identified as a special counsel in the DOJ’s civil division.

“Moreover, once those core provisions are excised, the balance of the ACA cannot continue to operate as intended,” Flentje wrote. He added: “Instead of rewriting the statute by picking and choosing which provisions to invalidate, the proper course is to strike it down in its entirety.”

U.S. District Judge Reed O’Connor of the Northern District of Texas ruled in December that a congressional tax law passed in 2017—which zeroed out the penalty imposed by the ACA’s individual mandate—rendered the entire health care law unconstitutional. Legal scholars have widely criticized O’Connor’s ruling as “embarrassing” and “unmoored.”

The health law remains in effect while the ruling is being appealed to the U.S. Court of Appeals for the Fifth Circuit. Numerous groups represented by Big Law have flooded the appeals court with briefs backing defenders of the health care law.

Main Justice has a long tradition of defending the constitutionality of federal laws, and while there are exceptions, it’s rare for the department to refuse to defend a federal statute.

The Justice Department’s change in course comes months after now-Attorney General William Barr told U.S. senators at his confirmation that he was open to reconsidering the government’s decision to not defend the law.

Barr later told senators during an April budget hearing that the administration’s position siding with O’Connor’s ruling was “defensible,” and urged lawmakers to let the courts do their job if they opposed the White House’s position.

A coalition of states, led by California Attorney General Xavier Becerra, have defended the law after the Justice Department made the controversial decision to drop its defense. The U.S. House of Representatives also stepped in to defend the law and hired former U.S. Solicitor General Donald Verrilli, who defended the ACA at the U.S. Supreme Court nearly six years ago.

Texas Attorney General Ken Paxton and several other Republican-led states are leading the challenge to the health law. More than two dozen amicus briefs have been filed in the case, most of which oppose O’Connor’s ruling.


The Justice Department’s new filing is posted in full below:




Read more:

5th Circuit Strikes Gibson Dunn’s Pro-Obamacare Brief for Recusal Issue

Here’s What Big Law Clients Are Saying About ‘Backward’ Obamacare Ruling

In Reversal, DOJ Now Says Whole ACA Unconstitutional

‘Embarrassingly Bad,’ ‘Unmoored’: Scholars Bash Texas Judge’s ACA Takedown

Meet the Justice Department Team That Won’t Defend the Affordable Care Act