The Trump administration announced back in March that it would ask a federal appeals court to strike down the entirety of the Affordable Care Act, and now it has done it. It filed its brief in Texas v. United States Wednesday, formally joining the 18 Republican-led states trying to abolish the law and with it health insurance coverage for millions of people.
Nicholas Bagley, a professor of health law at the University of Michigan Law School, noted that the filing is so radical that only two Justice attorneys would sign on to it—Jody Hunt, the political head of the Civil Division, and Auggie Flentje, who’s serving as “special counsel”—an anomaly for a brief that is this monumental and would normally feature a raft of attorneys signed on. He added that it probably reflected the fact that there just aren’t attorneys at Justice “willing to put their names on this brief—one that breaches the Department’s deeply felt duty to defend federal statutes.” He added in an interview with The New York Times that it is a “a testament to the outrageousness of the Justice Department position, that no reasonable argument could be made in the statute’s defense. […] It is a truly indefensible position. This is just partisan hardball.”
Indefensible, and, in another expert’s words, absurd. Georgetown Law professor Marty Lederman also calls the brief “nuts”, tweeting that it is “the sort of cynical casuistry that gives lawyers a bad name,” forming the entire basis of the brief on a blatant and partisan misreading of congressional intent. The brief in a nutshell argues, ridiculously, that because Congress zeroed out the penalty tied to the individual mandate, the whole of the ACA has to be eradicated. That’s clearly not what Congress wanted to do, or it would have done it. Only the extreme partisan minority—and Donald Trump—wanted that to happen, and they couldn’t get it done, so they’re trying to get a court to do it.
If the courts agree, everything the law provides—and more—will be invalidated. All of the protections it has provided for everyone, not just people buying insurance on the exchanges, would be gone. This is an extremely disruptive proposition. The ACA is what’s known as a “super statute,” one that has so many moving parts and is so interwoven into the entire health system that it’s changed in big and small ways how everyone gets health care.
Oral arguments before the reliably extremist Fifth Circuit Court of Appeals in New Orleans will be heard in July, and a decision expected around the end of the year, just in time for the 2020 election cycle to be really heating up. Whatever the decision, it will be appealed to the Supreme Court. In a presidential election year, with that court now weighted toward Trump with Neil Gorsuch and Brett Kavanaugh joining Justices Thomas and Alito in the clearly extremist partisan column. And leaving Chief Justice John Roberts in a quandary, weighing his politics versus his legacy.
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