The Trump administration has formally called on a federal appeals court to strike down the entirety of the Affordable Care Act, just over a month after it signaled this major change to its legal strategy.
In a court filing (PDF) Wednesday evening, the Department of Justice argued that the repeal of the individual mandate in 2017 rendered the entire ACA unconstitutional. Prior to this, the DOJ instead argued that portions of the law could continue without the mandate in place.
“The remaining ACA provisions should not be severed from the individual mandate, regardless of whether the government might support some of those provisions as a policy matter,” DOJ wrote in the brief.
U.S. District Judge Reed O'Connor of the Northern District of Texas ruled in December that the law was unconstitutional following the mandate repeal, and the case is on appeal. It’s likely that the Supreme Court will need to weigh in.
Top Democrats have roundly condemned the DOJ’s brief. House Speaker Nancy Pelosi, of California, said in a statement that there “is no viable legal argument and no moral defense” for the White House’s position in the case.
“The Trump administration owes the American people answers for why it is seeking to rip away protections for pre-existing conditions and cause such vast suffering for families across America,” Pelosi said.
Leading healthcare industry groups, including the American Medical Association and American Hospital Association, also sounded the alarm when the DOJ first indicated its new legal position in March.
In addition to calling for the entire law to be invalidated, the DOJ also argues that the plaintiffs are entitled to legal relief only for the provisions that harm them.
This position puzzled some legal experts, as it indicates in the brief that the White House wants the entire law to be eliminated but is also trying to control the scope of that process.
Nicholas Bagley, a law professor at the University of Michigan, argued on Twitter that it indicates the Trump administration wants certain elements of the ACA used to prosecute fraud cases to stay in place, likely as they’re prosecuting cases under these provisions.
“But that’s what you get when you make a partisan decision to decline to defend a statute with many more moving parts than you knew about,” he wrote.
Further briefs in the case are due next week, and oral arguments are scheduled for July.