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

Dec 2014
The Milky Way

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

NFIB v. Sebelius Comes Back to Bite Obamacare

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.


Jul 2014
Border Fence

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

NFIB v. Sebelius Comes Back to Bite Obamacare

This DAVID CATRON is fighting a monster of his own making. I know no one that is accusing the DOJ of dereliction of duty for not defending ACA against states that want to end the individual mandate.

A majority of the justices held that the individual mandate exceeded Congress’ power under the Commerce and Necessary and Proper Clauses, a different majority held that it was “fairly possible” to read the individual mandate plus its tax penalty as a single, unified tax provision, and thus could be supported under Congress’ tax power — i.e., this is how the Supreme Court held the ACA constitutional.

The Court ruled that Congress had the power to create this taxing scheme. That means Congress has the power to end it.

Congress ended the individual mandate but not the entire law. So why are the states suing the US Government? Because the ACA law was written to keep Congress from doing what it can only do...attempt to kill the law piece meal.

Congress did not.

Now the states want the Court to do what Congress failed to do. Remember Scalia was on the court when the original ruling was made. What has changed?
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