‘Engaging in that process and making that determination is something that’s appropriate for an attorney general to do…’
(Mary Ellen McIntire, CQ-Roll Call) House Democrats opened a probe Tuesday into the Trump administration’s decision not to defend the 2010 health care law in a high-profile legal challenge, as Attorney General William Barr urged lawmakers to allow the case to move through the courts.
The chairmen of five House panels sent letters to the White House, the Department of Health and Human Services, and the Justice Department seeking documents and communications about how the decision was made earlier this year to only partially defend the Affordable Care Act in a legal challenge brought by Texas’ attorney general and other conservative state attorneys general.
The Justice Department then changed course last month and decided not to defend the law, also known as “Obamacare,” at all.
The precedent of attorneys general not enforcing laws they disagree with began during the Barack Obama administration, when then top-lawyer Eric Holder absolved his state counterparts from fulfilling their duties.
“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Holder said in a 2014 New York Times interview on the topic of LGBT marriage.
The Obamacare law met with considerable legal challenges when passed in March 2010. It was only by re-interpreting a key provision of the law—declaring that a penalty for non-purchasers was, in fact, a tax—that U.S. Supreme Court Chief Justice John Roberts was able to clear the healthcare overhaul to take effect.
But after Congress later voted to eliminate the “individual mandate” it called into question the entire foundation of the law.
DOJ officials with the Trump administration said they agreed with Texas District Court Judge Reed O’Connor that the entire law should fall after the end of the penalty for not having individual health insurance.
“When we’re faced with a legal question, we try to base our answer on the law,” Barr told Rep. Matt Cartwright, D-Pa., during a House Appropriations subcommittee hearing Tuesday.
House Democrats have joined several Democratic state attorneys general to defend the lawsuit, which is now pending before the 5th U.S. Circuit Court of Appeals.
Barr also said that the department has to take a position in litigation. He told Cartwright that the president has made clear that he would support protection for customers with pre-existing conditions and is proposing a substitute for the health care law if the court does strike it down.
“Do you think it’s likely we’re going to prevail?” Barr told Cartwright. “I’m just saying that if you think it’s such an outrageous position, you have nothing to worry about. Let the courts do their job.”
Barr declined to elaborate on news reports that he had opposed the decision to take the broader decision in court.
“I believe that the final decision reached is a legally defensible and reasonable legal position,” Barr said. “It is a position that prevailed in the district court.”
Barr also noted that four dissenting justices in a 2012 Supreme Court case, National Federation of Independent Business vs. Sebelius, also adopted the reasoning by the Texas judge last year, which is that once Congress effectively ended a mandate to get coverage, the rest of the statute cannot stand.
The Democratic investigation is seeking a list of all White House and Office of Management and Budget officials that were involved in the decision not to defend the law, as well as records of communication between several administration officials including acting White House chief of staff Mick Mulvaney related to the decision not to defend the law’s constitutionality.
“The House is determined to get answers on the administration’s nakedly political decision to rip affordable health care away from millions and millions of Americans,” Judiciary Committee Chairman Jerrold Nadler, D-N.Y., said at a news conference.
The letters note that if the courts did overturn the law in full, millions of people would lose their health insurance coverage and people with pre-existing conditions would be harmed.
It would also undermine the administration’s own health care agenda, the Democrats write. Officials are currently testing drug pricing models through the Centers for Medicare and Medicaid Services Center for Medicare and Medicaid Innovation that was created under the 2010 law and the administration’s push to reduce most HIV infections relies on the law, too.
“It is not clear how this plan will operate if the law is overturned,” they wrote in a letter to White House Counsel Pat Cipollone.
In a Sunday appearance on Fox News, Mulvaney said it shouldn’t be a surprise that the administration expanded its position in the lawsuit, but that the surprise should have been the narrow approach in the first place.
“What was actually a surprise to us is that when Jeff Sessions was attorney general, he took a different position and said only parts of the law were unconstitutional,” he said.
(Todd Ruger contributed to this report.)
©2019 CQ-Roll Call, Inc., All Rights Reserved. Distributed by Tribune Content Agency, LLC.