Opinion: Trump’s latest attack on Obamacare damages the Justice Department
By Josh Blackman March 27 at 4:10 PM Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and an adjunct scholar at the Cato Institute. He has published two books on the Affordable Care Act.
In the short term, this position will have little impact on the ACA litigation. Other parties, including the House of Representatives, can defend the entire law. But in the long run, this move is counterproductive. The Justice Department has amassed a treasure trove of goodwill and credibility among federal courts over the years. But going forward, judges may be less willing to afford the executive branch this unique type of deference.
Generally, the executive branch has an obligation, where possible, to defend the constitutionality of federal laws. And if part of the law is constitutional, the executive branch usually tries to salvage the remainder of the statute. Sessions took a different path. In June 2018, he informed Congress that the Justice Department would no longer defend the constitutionality of the individual mandate. I agreed with his decision — the $0 penalty can no longer be saved as a tax.
At a minimum, Attorney General William P. Barr should do what his predecessor did — explain why he is no longer defending other portions of the law. That task may be hard. According to reports from Politico, the White House pushed this position over Barr’s objection. Even if the attorney general can make the case, there still may be fallout.
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