Five House Committee chairmen have sent letters to both Attorney General William Barr and the White House demanding documents regarding the administration’s decision not to defend the Affordable Care Act in federal court and threatened using “alternative means” if the executive branch fails to comply.
In court papers filed with the 5th U.S. Circuit Court of Appeals, according to USA Today, the administration “argued that Congress made the law untenable in 2017 by eliminating tax penalties for people who do not purchase insurance. The provision was part of the $1.5 trillion tax overhaul passed by Republicans in 2017.”
“In the district court, the Department of Justice took the position that the remainder of the ACA was severable,” the DOJ court filing stated, in part, according to the newspaper. “But upon further consideration and review of the district court’s opinion, it is the position of the United States that the balance of the ACA also is inseverable and must be struck down.”
In the letters to the Trump administration and the Justice Department, House Judiciary Chairman Jerrold Nadler, D-N.Y., Committee on Oversight and Reform Chairman Elijah E. Cummings, D-Md., Committee on Energy and Commerce Chairman Frank Pallone, Jr., D-N.J., Committee on Ways and Means Chairman Richard E. Neal, D-Mass., and Committee on Education and Labor Chairman Robert C. “Bobby” Scott, D-Va., argued the DOJ has taken a “new — and flawed — legal position.”
“[D]espite acknowledging that Congress intentionally ‘eliminated the mandate’s penalty while retaining the rest of the ACA,’ the Department went on to argue that the entire rest of the ACA nevertheless should be struck down,” the chairmen wrote.
“The faulty legal reasoning in this submission underscores the concerns we raised in our letter that politically-motivated forces inside the White House and the Office of Management and Budget may have brought undue pressure on the Department of Justice to reverse its prior legal conclusions and disregard its own legal reasoning in violation of the Constitution’s solemn charge to ‘take care that the laws are faithfully executed,’” the Democrats added.
The lawmakers warned if the ACA — better known as Obamacare — should be overturned in its entirety, it would deprive “millions of Americans” of health insurance coverage.
“Given the grave consequences that would result if the Trump Administration’s legal position were to prevail, it is Congress’ responsibility as an independent and co-equal branch of government to understand how this decision was made, including whether the President or anyone in the White House instructed the Department to override its legal conclusions and take a position that would result in the loss of health insurance coverage for millions of Americans,” the letter stated.
The House leaders set a deadline of May 24 for the administration to comply with its requests, and they are also calling for four officials involved in the decision, as well as acting Director of the Office of Management and Budget Russ Vought, to testify before Congress.
“If we do not receive a response by this date, we will have no choice but to consider alternative means of obtaining compliance,” the lawmakers wrote, without stipulating what those means might be.
The “alternative means” would likely be subpoenas of the Trump administration officials seeking to compel testimony and to turn over the documents requested.
Last week, the House Judiciary Committee voted to hold Barr in contempt of Congress for not turning over a fully unredacted version of special counsel Robert Mueller’s report, along with its underlying evidence.
Assistant Attorney General Stephen Boyd sent a letter to Nadler explaining that the Department of Justice has made a less redacted version of the Mueller report available to key members of Congress, including Nadler.
That version permits “review of 98.5 percent of the report, including 99.9 percent of Volume II, which discusses the investigation of the President’s actions,” Boyd wrote.
Last month, top Democrats led by Nadler and Cummings had written the Trump administration contending it had an obligation to defend Obamacare, The Hill reported.
“This refusal appears to be violating longstanding policies to defend and enforce Acts of Congress; will have a significant negative impact on the accessibility of healthcare for Americans; and appears to be driven by political considerations rather than considered legal arguments,” they argued.
However, it is not unprecedented for an administration to refuse to defend a federal law.
In 2011, for instance, President Barack Obama instructed the DOJ not to defend the Defense of Marriage Act, though it had been in effect, unchanged, since 1996.
A National Public Radio report from that time listed other occasions in the past where presidents have refused to defend laws being challenged in federal courts.
In a letter to congressional leaders, then-Attorney General Eric Holder wrote Obama “has made the determination,” that the act “as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.”
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