Congressman Jerrold Nadler, D-N.Y., is demanding to know why the Department of Justice refused to defend the Affordable Care Act against legal challenges—this time taking his request to Acting Attorney General Matt Whitaker.
Nadler's letter to Whitaker carries extra weight given the results of the 2018 midterm elections. Come January, Nadler will be chairman of the House Judiciary Committee, a position he promised to use to probe the DOJ's actions further.
He signaled that Democrats would be investigating the DOJ's decision under former Attorney General Jeff Sessions.
"In the next Congress, this Committee expects to examine the Department’s refusal to defend a duly enacted federal statute, the abrupt resignation of veteran Department employees, and an apparent determination by this Administration to undermine affordable healthcare coverage for millions of Americans," Nadler wrote.
The request comes as the ACA is facing yet another existential court ruling. In Texas vs. HHS (PDF)—which the U.S. District Court in the Northern District of Texas is expected to release a verdict on any day now—a group of 18 Republican attorneys general is suing to dismantle the ACA.
But HHS, nominally the defendant in the case, has completely withdrawn. Instead, a group of Democratic attorneys general, led by California's Xavier Becerra, has stepped in to provide legal arguments in the defense of the ACA.
Nadler argued in his letter that this highly unusual circumstance is a violation of the executive branch's duty to implement standing law.
"Congress makes the laws and the Executive Branch enforces them. The Department of Justice has so far failed to justify its decision to abandon this principle," he said. "The litigation appears to be, at best, a cynical pretext for one more try at repealing the ACA."
Nadler requested that Whitaker respond to this inquiry—as well as two letters Democratic leaders sent to Jeff Sessions back in June—by Dec. 31, 2018.
In June, then-Attorney General Sessions announced his decision that the department would not defend the constitutionality of the ACA against the Texas lawsuit. At the time, he defended that decision by arguing that the president isn't obligated to defend statutes he believes are unconstitutional.
"The Department in the past has declined to defend a statute in cases in which the President has concluded that the statute is unconstitutional and made manifest that it should not be defended, as is the case here," he wrote in a letter to Speaker of the House Paul Ryan.
The plaintiffs' argument rests upon Congress' repeal of the individual mandate and an interpretation of the Supreme Court's 2012 decision regarding the ACA. The Republican attorneys general, led by Texas’ Ken Paxton, argued that when the Supreme Court turned the individual mandate into a tax, it made the law's constitutionality dependent on that tax. So when Congress removed it in the 2017 tax reform bill, Paxton argued that the entire law was essentially made invalid.
Health policy experts are eagerly awaiting a ruling from District Judge Reed O'Connor, who had promised a swift decision earlier this year.