WASHINGTON – A continuing challenge of covering the three-ring circus that is the Trump administration is not letting the outrageous antics and statements of the president and his allies distract attention from the outrageous policies being implemented on his watch.
One example, unfolding right now in the midst of the president’s various rhetorical wars – with our G-7 partners, with the special counsel, with his own attorney general – is the administration’s remarkable move not to defend the constitutionality of key parts of the Affordable Care Act.
This is a huge deal. First, if the administration’s position prevails, millions of Americans will lose the protections they thought they had against being denied coverage if they suffer from pre-existing conditions. Second, and perhaps even scarier, the administration’s behavior sets a dangerous precedent about the obligation of this and future presidents to follow their constitutional duty to faithfully execute the laws enacted by Congress.
Some background: The Affordable Care Act required most Americans to obtain health insurance, and imposed a penalty, administered by the Internal Revenue Service, on those who failed to comply. In upholding the constitutionality of the ACA, the Supreme Court found that the individual mandate exceeded Congress’ power under the Commerce Clause but nonetheless upheld the requirement as a legitimate exercise of Congress’ power to tax. In last year’s tax bill, Congress effectively repealed the individual mandate by setting the penalty for noncompliance at zero, beginning next year. Twenty states then sued, claiming that because no tax revenue is to be collected as a result of the individual mandate, the remainder of the law is unconstitutional as well.
On Thursday, the Justice Department declined to do its job – that is, to defend the laws of the United States when attacked in court. “The Executive Branch has a long-standing tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense,” Attorney General Jeff Sessions wrote in a letter to Congress.
Still, he said, “this is a rare case where the proper course is to forgo defense” – not just of the individual mandate but also of two intertwined provisions, “guaranteed issue” requiring insurance companies to provide coverage to those with pre-existing conditions and “community rating” charging higher premiums on the basis of medical history.
This is crazy. Nobody imagined – not members of Congress who happily gutted the individual mandate, not President Trump in signing the new law, not members of the public who wanted to learn about what the tax change meant for them – that the consequence was also to eviscerate perhaps the most popular part of the health care law, the protection for those with pre-existing conditions.
You might have thought if that was going to happen, it would have come up at some point in the public debate. You might have thought it would receive some notice from the president, who in his first address to a joint session of Congress proclaimed it was his priority to “ensure that Americans with pre-existing conditions have access to coverage,” and who signed the tax law without any peep about this provision’s supposed unconstitutionality.
In writing the tax law, Congress neutered the individual mandate but left the pre-existing conditions provision in place – which suggests, notwithstanding the Justice Department’s argument now, that it believed one requirement could survive separate from the other. Where’s the unconstitutionality – the kind of manifest unconstitutionality that would justify abandoning the duty to defend a statute – in that?
Which brings us to the Defense of Marriage Act, and Barack Obama’s 2011 correct but risky decision not to defend the law’s prohibition on federal recognition of same-sex marriage. As The Washington Post’s Editorial Board worried at the time, “What … if a conservative Republican administration in the future attempted to sabotage the Obama health-care initiative by refusing to defend it against constitutional attack?”
What if, indeed. But the difference is that the Obama administration chose not to defend a statute whose constitutional repugnance had grown too obvious to ignore; in the 15 years since its passage, as Attorney General Eric Holder noted in announcing the change, the legal landscape had been transformed, including the Supreme Court reversing itself on laws criminalizing homosexual conduct.
Here, the injury to the Constitution is unclear at best. The injury to congressional intent, and to Americans who relied on promises of protected coverage, is evident.
This is not a slippery slope. It is a ski jump into lawlessness.
Ruth Marcus’ email address is firstname.lastname@example.org. (c) 2018, Washington Post Writers Group.