NEW: DOJ Sides With Court That Invalidated Obamacare, Will No Longer Defend the Law

Seton Motley | Red State |

This came over the wire late last night and is pretty big news.

You may recall that U.S. District Court Judge Reed O’Connor ruled Obamacare completely unconstitutional back in December. At the time, the news was brushed off as inconsequential by many and it was quickly appealed. It’s currently making it’s way through the 5th Circuit Court of Appeals.


Now, the DOJ has decided it concurs with O’Connor’s ruling and will not waste resources to defend a law it views as unconstitutional.

U.S. District Court Judge Reed O’Connor ruled in December that the Affordable Care Act’s individual mandate is unconstitutional and that the rest of law is therefore invalid.

The DOJ said Monday that it agrees the decision should stand as the case works its way through the appeals process in the U.S. Court of Appeals for the 5th Circuit.

“The Department of Justice has determined that the district court’s judgement should be affirmed,” the department said in a short letter to the appeals court.

This all centers on the fact that the “tax” associated with Obamacare was repealed in late 2017. The nonsensical argument that the penalty was a tax formed the basis for the (flawed) logic of Chief Justice John Roberts, who essentially rewrote the law to save it under the Obama Presidency. With that tax gone, there is no hook anymore to uphold the law. At least, that’s the argument being made.

The case centers on the argument that since Congress repealed the tax penalty in the law’s mandate for everyone to have insurance in 2017, the mandate can no longer be ruled constitutional under Congress’s power to tax. The challengers then argue that all of ObamaCare should be invalidated because the mandate is unconstitutional.


Of course, I expect Roberts to do whatever it takes to save the law once again, even if it means completely contradicting himself.

The fact that the Trump administration will no longer defend the law complicates matters though. It’d be unusual for a court to continue a case and rule on it when there’s no defendant anymore to defend the issue in question. Given how activist our courts have become though, many judges will see it as a matter of public concern that they make the “right” decision on this.

This is of course leading to all kinds of hypocritical hysteria, such as this take by Nicholas Bagley.

This is very ironic given that there were multiple laws that the Obama administration just flat out refused to defend. DOMA is one. Not once during that time do I remember media members nor Democrats complaining that it was a threat to the rule of law or centuries of Justice Dept. practice.

That’s politics though.

Here’s an idea. How about Democrats just pass laws with less obvious constitutional questions next time? Then we can avoid all this. In the meantime, look for this to be a lifeline to the Democratic party in regards to the 2020 election. Just like 2018, they will attempt to make healthcare a major issue again and this time they’ll have a built in reason to point their finger at the other side. If somehow this ruling stands after appeal, it’ll be incredibly important for Republicans to do something on healthcare later this year. With a Democratic House, good luck with that.



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