Legal experts of various stripes expressed outrage earlier this month when the Justice Department, after years of defending the constitutionality of the Affordable Care Act (ACA) all the way to the Supreme Court, suddenly filed a brief supporting a Texas-led challenge to the law. It was the Justice Department’s argument on what lawyers call “severability” that particularly stunned and angered these legal analysts.
It argued that, because the ACA’s individual mandate is in the Justice Department’s view unconstitutional now that the tax previously imposed to enforce it has effectively been repealed, other key parts of the law have become unconstitutional, too, because Congress wouldn’t have wanted them without the individual mandate. In other words, the Justice Department argued the mandate was not “severable.”
For DOMA, Obama’s Justice Department ultimately found it impossible to ignore what Congress was doing when it passed the law. As the Justice Department’s briefs made clear, and as the Supreme Court ultimately agreed, it was the language of those in Congress supporting DOMA that helped to reveal its constitutional defects. Animus against gay and lesbian Americans motivated DOMA and thus infected the law. In addition to grappling with what Congress had really done in passing DOMA, Obama’s Justice Department recognized that time had rendered Congress’s animus even uglier and more distant from the country’s moral center.
For the ACA, Trump’s Justice Department has done the opposite. Instead of facing what Congress actually did, the Justice Department has ignored it. That is, instead of feeling itself unable to avoid what Congress’s real motivation was, as in the DOMA case, the Justice Department has reached out to concoct a frivolous argument that ignores what Congress actually did and has invented a legislative intent opposite to the real one.
That is where the Justice Department’s recent about face rests on a substantively unsustainable position. Severability can be a tough legal question when Congress passes a lengthy statute and fails to clarify whether it wants some provisions to remain in place even if a court strikes down others. But Congress was perfectly clear about what it wanted to do with the ACA’s various provisions by voting specifically to excise the tax associated with the individual mandate while voting not to repeal other provisions of the law. By somehow claiming that Congress would not have wanted to leave in place the ACA provisions that Congress did in fact leave in place, the Justice Department is doing the opposite of what it did for DOMA by ignoring legislative intent rather than acknowledging it.
That is why the Justice Department’s abrupt 180-degree turn has left legal experts across the political spectrum enraged at what that flip means for the Justice Department as an institution, regardless of their views of the ACA itself. A National Review commentator called the brief “troubling, trivial, and absurd.” Another National Review commentator made the argument that “the Trump administration peeled back a new layer of absurdity with its brief.” At the conservative-leaning Volokh Conspiracy, Professor Jonathan Adler summed it up nicely, writing that “we expect the Justice Department to defend the laws Congress enacts. Here, however, the Justice Department is doing the opposite. It is straining not to defend a law Congress enacted” and “doing so terribly.”
There is the difference from DOMA. After a hard look, the Justice Department felt that continuing to defend that law would be a legal and moral strain, and one that would put the federal government ever further from the realities of the enacting Congress and the sensibility of the American people. But with the ACA, the Justice Department is now straining to ignore legislative will and disregard the expectations.
That very different orientation likely explains why, in an unusual move, three career Justice Department lawyers withdrew from the case hours before the agency filed its brief. That seems an indication of discomfort felt even within the Justice Department at the unjustified abdication of its traditional role. Even the attorney general appears to have struggled to justify what the Justice Department did, suggesting that the agency somehow has a lesser responsibility to defend provisions of a federal statute once the question of severability has been implicated.
With the Justice Department abandoning its traditional role defending federal statutes, it is now up to the courts — and likely, in the end, the Supreme Court — to vindicate real rather than imagined congressional intent. That is a sad state of affairs for the Justice Department and the country, regardless of one’s view of the ACA.
Joshua Geltzer is executive director and visiting professor of law at the Georgetown Institute for Constitutional Advocacy and Protection and an Arizona State University Future of War fellow at New America. He served as deputy legal adviser to the White House National Security Council.