Trump Justice Department: ACA is unconstitutional

The Justice Department will not defend the Affordable Care Act in court, and says it believes the law’s individual mandate — the provision the Supreme Court upheld in 2012 — has become unconstitutional.

Why it matters: The Justice Department almost always defends federal laws when they’re challenged in court. Its departure from that norm in this case is a major development — career DOJ lawyers removed themselves from the case as the department announced this shift in its position.

The details: The ACA’s individual mandate requires most people to buy insurance or pay a tax penalty. The Supreme Court upheld that in 2012 as a valid use of Congress’ taxing power.

• When Congress claimed it repealed the individual mandate last year, what it actually did was drop the tax penalty to $0.
• So the coverage requirement itself is still technically on the books. And a group of Republican attorneys general, representing states led by Texas, say it’s now unconstitutional — because the specific penalty the Supreme Court upheld is no longer in effect.
• The Justice Department agreed with that position in a brief filed Thursday night.
• DOJ said the courts should strike down the coverage requirement, as well as the provision of the law that forces insurance companies to cover people with pre-existing conditions.

Between the lines: For the Justice Department to stop defending a federal law is not unprecedented — the Obama administration did it with the Defense of Marriage Act. But it is exceptionally rare.

A group of Democratic attorneys general will defend the ACA however.

Trump’s Tax Reform plan got rid of the Mandate by dropping its penalty to $0. However, if a court finds the tax unconstitutional it will further back the Trump administration’s plans to beat the ACA.