Jeff Sessions' DOJ won't defend the Affordable Care Act-- What does that mean?

The Department of Justice (DOJ) in a brief filed in a federal court on June 8, 2018 said it will not defend the Affordable Care Act (ACA) in a lawsuit claiming the ACA's individual mandate, and therefore the entire law, is unconstitutional.

Separately, 16 states and the District of Columbia, which were granted legal standing to intervene in the case, on June 8, 2018 filed a brief defending the ACA.

The Lawsuit Details

The Supreme Court in 2012 upheld the ACA's individual mandate, ruling that although Congress could not force U.S. residents to purchase insurance, lawmakers could impose a tax penalty on individuals who did not enroll in health coverage.

But, a group of 20 Republican-led states, led by Texas Attorney General (AG) Ken Paxton (R) and Wisconsin AG Brad Schimel (R), in February filed a lawsuit in the U.S. District Court in the Northern District of Texas, in which they claimed that a recently enacted tax reform law eliminates the individual mandate's tax penalty starting in 2019 by setting the penalty U.S. residents must pay for remaining uninsured under the ACA at $0. The AGs in the suit argued that by zeroing out the tax penalty, the tax reform law has rendered the individual mandate, and by extension the entire health reform law, unconstitutional.


DOJ's move does not have any immediate effects on any ACA provisions, but the Post reports that it does place the ACA "on far more wobbly legal footing in the case," and "raises the possibility that major parts of the law could be struck down." According to Politico's "Pulse," the case still must move through the courts, and many experts have said they do not believe the 20 states challenging the ACA will prevail in the lawsuit.

California AG Xavier Becerra (D), who has filed a motion in the case in support of the ACA, said, "The … lawsuit is based on a dubious legal claim with the sole goal of stripping Americans of their health care."

Don Verrilli, who served as Solicitor General under former President Obama's administration and successfully defended the ACA in the 2012 Supreme Court case, criticized DOJ's decision, saying the department "has a duty to defend federal laws when reasonable arguments can be made in defense of the law."

Larry Levitt, senior vice president for health Reform at the Kaiser Family Foundation (KFF) and senior advisor to KFF's president, said, "Any time there's uncertainty about the future, insurers are going to build extra cushion into their premiums to make sure they get revenues while they can"


Ultimately, if the plaintiffs win, it could be a deathblow to the ACA, however, it would be equally a death blow to the rule of law, as the DOJ is constitutionally bound to uphold the laws enacted by congress. Bagley, in a blog post wrote, "If [DOJ] can just throw in the towel whenever a law is challenged in court, it can effectively pick and choose which laws should remain on the books." He continued, "That's not a rule of law I recognize. That's a rule by whim. And it scares me."

(Armour, Wall Street Journal, 6/7; Goldstein, Washington Post, 6/7; Beech/Lambert, Reuters, 6/7; Scott, Vox, 6/7; Diamond, "Pulse," Politico, 6/8).

*Adapted from Advisory Board