ACA: DOJ Won’t Defend Individual Mandate in Court—But 16+ States Will

One of the DOJ’s principal roles is to defend the federal laws in court cases challenging their constitutionality. But the agency has made it known that it will not be doing that in a lawsuit brought by 20 Republican-led states claiming that the individual mandate and other key provisions of the Affordable Care Act are unconstitutional.

Constitutionality of ACA Individual Mandate
Legal challenges to the individual mandate requiring individuals to buy insurance or pay a tax penalty are nothing new. In 2012, the U.S. Supreme Court upheld the mandate as a valid exercise of Congress’ power to tax. But rather than ending the controversy, the ruling served only to further politicize it. The tax bill Congress enacted last year included a provision repealing the penalty provisions but left the actual mandate to buy insurance in place.

The new lawsuit, which was filed in February, returns the controversy to the judicial level. Now that the tax penalty has been repealed, the 2012 Court ruling is no longer effective, the states contend. And since the mandate’s constitutionality is now back in play, the argument goes, another key ACA provision tied to the mandate, namely, the guarantee of coverage for people with pre-existing conditions, is also subject to constitutional challenge.

This is normally the stage where the DOJ jumps in and defends the federal law under attack. But the brief the agency filed on June 7 argues that the challenged ACA provisions actually are unconstitutional and should be overturned.

What It Means
While unusual, the DOJ’s decision not to defend a federal law, which has the backing of the President, is not unprecedented. The Obama DOJ took the same approach in calling off its efforts to defend the federal ban on same-sex marriage.

Moreover, the vacuum left by the DOJ has already been filled. As reported by The Wall Street Journal, 16 states and the District of Columbia have been granted permission to intervene in the case and defend the ACA.