The Department of Justice is declining to interfere with a legal action that could have the significant impact on the Affordable Care Act, filing a brief stating that it will not defend the law in the case Texas v. The United States.
In February 2018, Texas and 19 other states filed a lawsuit in the U.S. District Court for the Northern District of Texas, Fort Worth Division, seeking to have the ACA’s individual mandate declared unconstitutional in light of the mandate’s penalty being reduced to zero effective Jan. 1, 2019. Congress eliminated the financial penalty for not carrying qualifying insurance coverage as part of the Tax Cuts and Jobs Act of 2017.
Taking it further, the plaintiffs argue in their court that if the individual mandate is found to be unconstitutional, the ACA “must be invalidated as a whole,” though they suggest that at minimum, “the guaranteed-issue and community rating provisions are non-severable from the mandate and must be invalidated along with the individual mandate.”
The Supreme Court in the 2012 case National Federation of Independent Business v. Sebelius ruled that the penalty associated with the individual mandate could be characterized as a tax and as such rejected the argument that the penalty and the individual mandate were unconstitutional. But since the repeal of the individual mandate and the government’s collection of revenue in conjunction with the mandate, the “ACA lacks a rational basis,” according to the plaintiffs.
DOJ signaled on June 7 that it is siding with the plaintiffs and will not be defending the Affordable Care Act in court.
In a letter sent the same day to House Minority Leader Nancy Pelosi, (D-Calif.), U.S. Attorney General Jeff Sessions said that after “careful consideration, and with the approval of the President of the United States, I have determined that ... the Department of Justice will not defend the constitutionality of the [individual mandate] and will argue that certain provisions of the Affordable Care Act (ACA) are inseverable from that provision.”
Mr. Sessions said in the letter that the plaintiffs “are correct” in determining that the individual mandate is unconstitutional in light of the legislative action to eliminate the penalty for not complying with the individual mandate.