From The New York Times:

https://www.nytimes.com/2019/03/27/opinion/trump-obamacare-affordable-care-
act.html

Why Trump’s New Push to Kill Obamacare Is So

Alarming
It’s not just the potential damage to the health care system and the people who
depend on it. It’s also the threat, in the administration’s legal logic, to the rule
of law.

By Nicholas Bagley
Mr. Bagley is a professor of law at the University of Michigan Law
School.

• March 27, 2019

Attorney General William Barr was supposed to be a voice of reason in the Trump
administration. An old Washington hand, he had the stature and the backbone to
protect the Justice Department from a White House that often seems to disdain
the rule of law.

Turns out it isn’t so.

In a stunning two-sentence letter to a federal appeals court, the Justice

Department announced on Monday that it would now seek the invalidation of the
entire Affordable Care Act — every last one of its thousands of provisions.

The irresponsibility of this new legal position is hard to overstate. It’s a shocking
dereliction of the Justice Department’s duty, embraced by Republican and
Democratic administrations alike, to defend acts of Congress if any plausible
argument can be made in their defense.

Nor is the Affordable Care Act some minor statute that can be shoved aside
without disruption. It is now part of the basic plumbing of the American health
care system. It guarantees protections for people with pre-existing medical
conditions. It expanded Medicaid to cover 12.6 million more people, and it offers
crucial protections to the 156 million Americans who get insurance through
employers.

Beyond that, the law forces insurers to cover preventive care and contraception
without charge; changed how hospitals and physicians bill for their services;
requires fast-food restaurants to post calorie counts; cut hundreds of billions of
dollars of Medicare spending; imposed hundreds of billions of dollars in taxes;
and much, much more.
Unceremoniously ripping up the law would inflict untold harm on the health care
system — and on all Americans who depend on it. Yet the Trump administration
has now committed itself to doing just that.

The letter was submitted in a pending case, brought by a group of red states, in
which a federal judge in Texas ruled that no part of the Affordable Care Act could
stand. The judge reasoned that Congress created a constitutional problem when,
in its big tax reform bill in 2017, it eliminated the financial penalty for going
without insurance.

Because of that purported constitutional defect, the court held, the entire law had
to fall. The ruling was indefensible: Legal scholars across the board criticized it as
outrageous and predicted it would almost surely fall upon appeal.

Indeed, even the Trump administration couldn’t bring itself to argue that the
entire law should be scrapped. It agreed there was a constitutional problem, but
said that the right remedy was to keep most of the law in place. Only those
partsrequiring private insurers to sell coverage at the same price to healthy and
sick people alike — the protections for people with pre-existing conditions —
would have to be struck.

That, too, was an outrageous position. It flouted the Justice Department’s duty to
defend, a solemn duty, and one that goes to the heart of the rule of law. Without
it, the sitting administration could pick which laws it wanted to defend in the
courts and which it wanted to abandon. Laws could rise or fall based on nothing
more than partisan disagreement. That’s inconsistent with a constitutional
system that assigns to Congress — not the president — the power to legislate.

And so, at the confirmation hearing on his nomination to become attorney

general, Mr. Barr said that he would review the Justice Department’s position in
the Texas lawsuit. Apparently he did just that — but whatever opposition he
offered fell short. It’s as if Mr. Trump said to his previous attorney general, Jeff
Sessions: “You thought your position was crazy? Hold my beer.”

Does the administration really think that the very position it advanced just
months ago is so untenable that it must now adopt one that is even more extreme?

The shift in legal position won’t make much of a difference in the lawsuit itself.
Because a group of blue states has intervened, the appeals court will hear a full-
throated defense of the law. Most observers expect the court to uphold the
Affordable Care Act; if so, the Supreme Court may choose not to hear the case.

But the Trump administration has signaled loud and clear that its campaign
against Obamacare is not over; that it will stop at nothing to achieve in court what
it could not achieve in Congress; and that it doesn’t care how many people are
hurt if the Affordable Care Act is undone.

It has also put health care back at the center of the political conversation.
Republicans already took a beating on the issue in the fall midterm elections, and
Democrats, who released a bill in the House to strengthen the Affordable Care
Act, want to keep running on it. They’ll be sure to remind voters of the Trump
administration’s zealous commitment to taking away their health care.

Along the way, the Justice Department has trashed the duty to defend. That’s not
to be taken lightly. The duty is a close cousin to the president’s constitutional duty
to enforce the law. If the Justice Department really thinks that Obamacare is so
blatantly unconstitutional that it can’t be defended, that implies that the
president is violating the Constitution whenever he applies it.

It’s not hard to see that as an incipient justification for refusing to enforce
any law that the president believes to be unconstitutional, however
ridiculous or partisan that belief might be. Hopefully it doesn’t come to
that. But the failure to defend the Affordable Care Act is an ominous sign
to anyone who cares about the rule of law.

Nicholas Bagley (@nicholas_bagley) is a professor of law at the University of Michigan

Law School.