NFIB v. Sebelius Comes Back to Bite Obamacare

Why the DOJ won’t defend the health care law in Texas v. United States.

David Catron June 11, 2018

Unless you have been vacationing in a far away galaxy, you will have heard the ululations of Obamacare apologists enraged by the Trump administration’s refusal to defend the health care law against a 20-state lawsuit challenging its constitutionality. Obamacare advocates claim that the failure to defend the ACA in Texas v. United States is an unprecedented dereliction of duty by the Department of Justice (DOJ). This is hysterical nonsense. It is indeed unusual, but the DOJ is by no means obligated to defend a law deemed unconstitutional by the President, as Attorney General Sessions explains in his notification letter to Congress:

The Department in the past has declined to defend a statute in cases in which the President has concluded that the statute is unconstitutional and made manifest that it should not be defended, as is the case here. See Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

Not coincidentally, this is the very language that erstwhile Attorney General Eric Holder used in his letter advising Congress, in February of 2011, that the Obama DOJ would not defend the constitutionality of the Defense of Marriage Act (DOMA). That decision was cheered by the very people who now accuse the Trump administration of “lawlessness” for not defending Obamacare. Ironically, the very real threat posed by Texas v. United States has its roots in another legal travesty that these people also celebrated — the 2012 Supreme Court ruling in NFIB v. Sebelius. That decision contained the seeds of Obamacare’s destruction………..To Read More…..