DOJ moves to oppose all of Obamacare in court

A Justice Department legal filing late Monday night to support a federal court decision killing all of Obamacare has put that debate suddenly back in the news.

The one-page letter to the clerk of the Fifth Circuit Court of Appeals informed the court the Justice Department now believes Judge Reed O’Connor’s decision in the Northern District of Texas from December 2018 should be affirmed, and it will file a brief in the case.

O’Connor, a federal judge based in Fort Worth, issued a decision on December 14, 2018 in Texas v. United States that invalidated the Affordable Care Act’s remaining parts. The decision held that without a fine related to Obamacare’s individual mandate, which was eliminated by Congress in 2017, the rest of the health care law’s features could not survive a constitutional challenge. O’Connor has put implementing that decision on hold until federal appeals courts could address the inevitable challenges to his ruling.

In June 2018, then Attorney General Jeff Sessions said that the Justice Department opposed two provisions in the Affordable Care Act about mandatory insurance coverage of persons with pre-existing medical conditions, along with the individual mandate. While the Justice Department would not defend the law in court, it also believed other parts of the ACA such as its health care exchanges and Medicaid expansion were “severable” and could survive a constitutional challenge.

Monday night’s filing indicated the Justice Department had changed its opinion on those issues after Attorney General William Barr took over the department.

A group of 16 states is opposing Judge O’Connor’s decision in the Fifth Circuit. The House of Representatives, now controlled by the Democrats, also filed its opening brief in the case on Monday.

Most legal experts believe the Texas case could be bound for the United States Supreme Court as another major challenge to the Affordable Care Act since its passage in 2010.

In June 2015, a divided Supreme Court said in King v. Burwell said Obamacare subsidies in about three dozen states were legal even though they weren’t targeted for federally run exchanges.

And in June 2012, Chief Justice John Roberts said in his opinion in NFIB v. Sebelius that Congress had the legal power to collect the individual mandate as a tax, upholding that the ACA was constitutional.

Scott Bomboy is the editor in chief of the National Constitution Center.