Last week was an amazing and unusual week at the Department of Justice, and it went largely unnoticed by the mainstream media. Attorney General Jeff Sessions, with the approval of President Trump, submitted court filings in two lawsuits agreeing that Obamacare will be unconstitutional as of Jan. 1, 2019, and that DACA is and always has been unlawful. Thus, DOJ will not defend Obamacare nor will it defend DACA on the merits.
Not since the Obama administration flipped its position on DOMA has the DOJ declined to defend something this important. And unlike the DOMA case, in both the Obamacare case and the DACA case, DOJ is relying on existing rulings from the Supreme Court and the 5th Circuit, respectively, in formulating its positions.
It is worth noting that the congressional Republican leadership utterly failed to repeal Obamacare as they had promised to do for so many years. Do you remember Sen. Mitch McConnell famously declaring that he would pull out Obamacare “root and branch?” Sadly, he was not serious and he has even fought to keep funding for Obamacare.
Additionally, as we watch the sad failure of the current House GOP leadership as they haplessly allow a small liberal group of the GOP caucus team up with the Democrats to take control of the House floor in their attempt to legalize DACA, we are dramatically reminded of how the GOP congressional leadership, in both the House and Senate, has failed to follow through on promise after promise. Whether it is repealing Obamacare or addressing illegal immigration, the Republican base has been betrayed over and over.
Along come Republican state attorneys general in these two cases to defend against the unconstitutional lawlessness left over from the Obama administration — lawlessness that the congressional Republican leadership has failed to address. And the DOJ has taken them up on the opportunity.
In the 2012 Obamacare ruling, Supreme Court Chief Justice John Roberts’ controlling opinion upheld Obamacare on only one basis, namely, that the tax penalty for defying the individual mandate was an exercise of Congress’ constitutional taxing power. But in the December 2017 tax reform bill, the tax penalty was set to zero dollars as of Jan. 1, 2019, thereby eliminating the tax that was the sole basis to uphold Obamacare in 2012.
The Republican state attorneys general pounced, filing the current lawsuit in reliance on the 2012 Obamacare ruling. That is why DOJ now takes the position that Obamacare cannot be defended. It is the Supreme Court’s own precedent that makes DOJ’s position the correct one, despite how rare such a position is for DOJ.
Similarly, concerning the DACA lawsuit filed by state attorneys general, they are relying on the virtually (legally) identical previous lawsuit that they won in the 5th Circuit Court of Appeals against DAPA — the parental version of DACA. In the earlier DAPA case, the court found DAPA to be an illegal exercise of presidential power. When that decision was appealed to the Supreme Court, the court deadlocked 4-4 (Justice Antonin Scalia’s seat was vacant), thereby leaving the 5th Circuit ruling in place.
It will not surprise you that the Republican state attorneys general brought their DACA case, including a motion for a preliminary injunction, in the 5th Circuit. And because of the already-existing case precedent there, the Department of Justice also agreed that DACA is illegal on the merits, so long as the states can show that they have been injured.
It is rare enough for the DOJ to not defend against a lawsuit against a federal program or statute, but for DOJ to not defend two such lawsuits in the same week has never happened before in recent memory. However, the most unusual aspect of Sessions’ (and Trump’s) decisions in these two cases is that they are both based on prior case law.
While some may say that Sessions and Trump made the logical and correct decisions in both of these cases (myself included), it does not change the fact that both decisions were bold defenses of constitutional government and the restoration of the separation of powers — both severely damaged under the prior administration.
Others will now step in to defend Obamacare and DACA, but they are fighting uphill battles in the face of prior court rulings, and now in the face of the federal government itself.
Since both the earlier Obamacare and DAPA rulings, the only changes to the courts have been Trump’s addition of new, conservative judges on the 5th Circuit Court of Appeals, and of course, the addition of Justice Neil Gorsuch to the Supreme Court. Gorsuch’s rulings thus far on the Supreme Court would indicate that he will be a fifth vote for upholding the determination that DACA is as illegal as DAPA was.
Sessions and Trump deserve to be congratulated on their brave stands for the rule of law in both of these cases, and now it is only for the courts to simply rule consistently with their earlier rulings and finally end Obamacare and DACA once and for all.
Ken Cuccinelli (@KenCuccinelli) is the former attorney general of Virginia and was the first state attorney general to file suit against the original Obamacare in 2010.
