- The Washington Times - Thursday, June 7, 2018

The Trump administration told a federal court Thursday it won’t defend Obamacare against a lawsuit that’s trying to strike down most of the law.

It’s a notable stance that means it will be up to Obamacare fans such as Democratic governors to step in and defend the Affordable Care Act against on onslaught from GOP attorneys general, who say after Congress nixed the individual mandate at the heart of the law, the rest of it should follow.

In court papers, the Justice Department said it doesn’t want to stop the law in its tracks, but said they agreed with the plaintiffs who say the most famous parts of the law are now illegal.

The crux of the argument goes back to Chief Justice John G. Roberts Jr.’s 2012 ruling upholding the constitutionality of the individual mandate as a valid use of Congress’s taxing power. The court held that Congress was able to offer people a choice: get insurance, or pay a tax.

If there is no tax penalty for not buying insurance now, then no taxation is taking place, so the other parts of the law tied to the individual mandate must go, the 20 GOP attorneys general argue.

The Justice Department concurred.

“The Supreme Court’s saving construction of the individual mandate as a tax is no longer available,” government lawyers wrote.

The White House and congressional Republicans had said they would like to have a replacement in hand before Obamacare is scrapped, but if the lawsuit prevails, that may not be the possible.

Republicans tried to repeal and replace the law last year, but those efforts stalled and GOP leaders haven’t expressed any desire to wage a health care fight in a mid-term year.

Justice attorneys said they don’t think it’s lawful to freeze Obamacare now, since repeal of the mandate doesn’t take effect until 2019.

But they suggested the court consider ordering that as of Jan. 1 two parts of the law will be invalid: that people with preexisting conditions must receive coverage, and that they cannot be charged more than healthier consumers.

“This court should hold that the ACA’s individual mandate will be unconstitutional as of January 1, 2019, and that the ACA’s guaranteed-issue and community-rating provisions are inseverable from the mandate,” they wrote.

Those protections had been considered sacrosanct by most members of Congress, with GOP lawmakers fretting during their efforts last year over how to unwind Obamacare while still preserving those parts of the law.

During the Obama years, the law had an ardent defender in the executive branch.

Now the defense is left to 17 Democratic states that intervened in the case, correctly fearing the administration wouldn’t mount much of a defense.

They urged the court to consider the implications of nixing more of Obamacare.

“There is no legal or equitable justification for depriving tens of millions of Americans of the benefits of these vital healthcare programs,” they wrote.

Nicholas Bagley, a law professor at the University of Michigan who tracks the issue, said he was stunned by the administration’s decision.

“I am at a loss for words to explain how big of a deal this is,” he said on Twitter. “The Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense. This brief torches that commitment.”

Still, refusing to defend a law is not unprecedented.

The Obama administration made the same move with respect to the Defense of Marriage Act, declining to defend it.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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