The effort to strike down the Affordable Care Act just got a powerful new ally, as the Justice Department now says the courts should find the 2010 law unconstitutional, and one of the lawyers spearheading the case is thrilled with the news.
“The Trump Justice Department is doing its job to uphold the Constitution,” said Rob Henneke of the Texas Public Policy Foundation. “I commend the Trump administration Department of Justice looking at the reasoning of the court and choosing to defend the rule of law and now seeking to uphold the correct opinion.”
Henneke joined Texas Attorney General Ken Paxton last year in arguing that a federal district judge should rule against Obamacare. Judge Reed O’Connor agreed, and his decision is now being challenged at the U.S. Court of Appeals for the Fifth Circuit.
Also known as Obamacare, the ACA survived a 2012 Supreme Court battle, when Chief Justice John Roberts admitted the ACA violated the Commerce Clause of the Constitution but allowed the law to stand because the penalties Americans paid to the government for failing to purchase health insurance fell under the power of Congress to levy taxes.
The 2017 tax reform enacted a zero dollar penalty for defying the individual mandate. So critics like Henneke say there’s no longer a tax and revenue reason to keep the law.
Supporters of the ACA suggest conservatives are hypocritical for two major reasons. First, they say critics of the Obama Justice Department were incensed when it refused to enforce laws it didn’t like, such as the Defense of Marriage Act, but are only too happy to fight against existing laws now.
Henneke rejects the accusation.
“This duty to defend is a made up doctrine from only the last couple of decades. It’s not the role of the Department of Justice to win at any cost. Their role is to seek justice and uphold the Constitution,” said Henneke.
Listen to the full podcast to hear Henneke explain why ACA defenders are also wrong to accuse Republicans of abandoning Americans with pre-existing conditions if the law were struck down. He also explains where the case stands at the appellate level.