DOJ will not defend constitutionality of ACA’s individual mandate

In a letter to Congressional leaders, Attorney General Jeff Sessions has indicated that the Department of Justice will not defend the constitutionality of the Affordable Care Act’s individual mandate in a lawsuit brought by a coalition of 20 states and two individuals who seek a declaratory judgment that the ACA is unconstitutional. The plaintiffs contend that the amended ACA is no longer protected from constitutional attack since the Tax Cuts and Jobs Act of 2017 (P.L. 115-97) eliminated the tax for failure to comply with the individual mandate.
The DOJ also argues in a response brief to the plaintiffs’ request for a preliminary injunction that the individual mandate cannot be severed from the ACA’s guaranteed-issue (i.e., prohibition on pre-existing condition exclusions) and community-rating requirements. Sessions’ letter notes, however, that “[o]utside of these two provisions of the ACA, the Department will continue to argue that Section 5000A(a) is severable from the remaining provisions of the ACA.”

Supreme Court ruling

In National Federation of Independent Business v. Sebelius, the Supreme Court held that the requirement to purchase health insurance could not be sustained as a valid exercise of Congress’s power under the Commerce Clause, but upheld the constitutionality of Section 5000A(a) under Congress’s taxing power. “Critically, however, the Supreme Court’s saving construction of the individual mandate as a tax is no longer available. The TCJA eliminated the penalty for failing to purchase minimum essential coverage (starting in 2019), but left untouched the statutory ‘[r]equirement to maintain minimum essential coverage’ in Section 5000A(a). See Pub. L. No. 115-97, §11081, 131 Stat. at 2092. The individual mandate thus still exists, but it will no longer be fairly possible to describe it as a tax because it will no longer generate any revenue,” the DOJ’s response brief states.

Mandate should not be defended

Sessions indicates that he has “determined that the plaintiffs in Texas v. United States are correct that Section 5000A(a) will be unconstitutional when the Jobs Act’s amendment becomes effective in 2019.” As such, he has “concluded that this is a rare case where the proper course is to forgo defense of Section 5000A(a).” He also writes, “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.”


Although the plaintiffs argue that Code Sec. 5000A(a) is inseverable from the rest of the ACA and, thus, the entire statute should be invalidated, the DOJ does not concur. Instead, Sessions notes the Department previously argued in NFIB that if Code Sec. 5000A(a) is unconstitutional, it is severable from the ACA’s other provisions except for the guaranteed-issue and community-rating provisions. “Post- Jobs Act, Congress’s express findings in the ACA continue to describe Section 5000A(a) as ‘essential’ to the operation of the guaranteed-issue and community-rating provisions because otherwise individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else,” Sessions wrote. (Texas v. United States, (N.D. Tex.), Civil Action No. 4:18-cv-00167-O, June 7, 2018; Office of the Attorney General letter, June 7, 2018.)

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