A Stealthy Congressional Abdication

Breathless press accounts aside, the Trump administration is far from the first and is wholly within its constitutional rights to decline to defend a law in court. The Obama administration did the same with the Defense of Marriage Act, to ample fanfare, just seven years ago.

What makes the Justice Department’s decision not to defend the shell of the individual mandate and the consumer-protection provisions of Obamacare remarkable is that Republicans fully control Congress and the White House. Repealing those provisions would be an afternoon’s work if they had the political will. The highest hurdle would be the compromise required to surmount a Senate filibuster.

But this would entail electoral accountability—as would repealing Obamacare wholesale, which Congress also could have done. Republicans made bold to remove the (unpopular) individual mandate penalty last year; the removal was part of the Tax Cut and Jobs Act. But now they are, in effect, following in a long tradition they once repudiated: asking the courts to do the potentially unpopular parts so they don’t have to.

Surely there are arguments to be made against the protections in question. They unquestionably place the insurance market at risk in the absence of the now-removed penalty on consumers for not buying insurance coverage. But as a matter of constitutional health, these arguments should be made in forums where officials are responsible to the public.

There is no small irony in a Republican Party that once made a martyr of Robert Bork, a champion of majority rule and judicial restraint, now turning to the courts to fight their political battles. It is bad enough when elected officials do so because they cannot win through the democratic process. This, though, is a case in which they could prevail through the proper constitutional channels but simply do not want to be held to account for doing so.

The Justice Department, like the state of Texas, the lead plaintiff, argues that the individual mandate in the Obamacare law, having been sustained as a tax, is no longer constitutional without the penalty and, crucially, that it is not severable from the guaranteed-issue and community-rating provisions of the law. This is a backhanded way of asking a judge to perform the legislative surgery from which Congress and the administration shrank. Without doubt, these provisions threaten insurers unless healthy people are brought into the insurance market. Yet it is equally plain that they are constitutional regulations of the insurance market.

The severability argument is that constitutionally invalidating one part of the legislative scheme requires invalidating parts of the law that depend on it. But these provisions would be independently constitutional regulations of the insurance market even if they were deemed to be imprudent when standing alone. As Justice Scalia taught over and again, “stupid” and “constitutional” are not incompatible terms.

The problem in this case is that what Republicans regard as stupid is also popular. Hence the rush to the courts. Conservatives will rue it.

It is a good rule of constitutional thumb not to trust anyone with a power one would not want wielded by one’s adversaries. The courts may be more hospitable to conservative policy arguments now, but that is a transient phenomenon. When progressives take control of the judiciary—as they will; no matter the branch of government, the other side eventually always wins—Republicans will have no principled basis on which to object to their opponents’ seeking policy resolution from the courts.

The use of courts for that purpose is also, as I indicated, politically unhealthy. It lets elected officials off the hook for their choices. Perhaps more important, it releases the people from responsibility from theirs: Voters cannot simultaneously and rationally require insurers to cover everyone who needs insurance coverage while opposing the unpleasantness of bringing into the insurance market even those who feel they do not need coverage. As the Attorney General’s letter on the subject noted, that would enable people to purchase insurance after they got sick or were on their way to the hospital.

More broadly, the use of the courts to make policy decisions vitiates the need for the reason-giving and persuasion that are the essence of a self-governing regime. In this, Republicans are moving down a trail that progressives blazed through decades of turning to the Warren and Burger courts when they did not like electoral outcomes. Republicans claim to be making constitutional arguments, but the Father of the Constitution would not recognize them. James Madison called majority rule “the vital principle” of the Constitution and said the Framers never intended the judiciary to have the final word even over constitutional disputes.

The practice of state officials’ suing the federal government to change its policy decisions, as opposed to persuading what Madison called their “common constituents” to vote differently, is especially pernicious. Whence Texas’ standing here, any more than Maryland’s standing to sue over the Emoluments Clause? There is a place for judicial review of disputes between the federal and state governments because the only other way to resolve them is, in Madison’s words, “an appeal to the sword.” But the trend of state officials on both sides of the aisle suing the national government because they do not like its policy decisions, regardless of whether they impinge on state authority, turns every policy dispute into a judicial dispute.

That is fundamentally hostile to the principle of republicanism. Majority rule does not assume every decision a majority makes is right—on the contrary, it demands of citizens that they be accountable for their own votes and that they vote differently when they want policies to change—but it does assume there is ultimately no other legitimate way of settling differences.  Rather than disempowering majorities, the Madisonian system seeks to place them in circumstances conducive to deliberation.

To be sure, the Constitution specifies some things majorities may not do. But a massive accumulation of precedent and practice would have to be unwound to declare that Congress cannot regulate insurance markets.

The reason the administration is not pursuing that result legislatively despite its firm grip on Congress is that it would be unpopular in the middle of an already precarious midterm election campaign. But those are the breaks in a regime of republicanism. Elected officials make their best arguments, enact their best policies and, ultimately, let the voters decide. If the voters wish to hobble the insurance markets on which they depend through a regulatory scheme that has been undone piecemeal, it is not for the courts to rescue them. To say otherwise is to risk moral hazard: A judicial safety net encourages reckless voter and congressional behavior. Reflexive use of the courts also atrophies the skills of political engagement and inflames the losing side, which feels it lost an unfair fight.

It is unhealthy enough for a republic to give the last word concerning its fundamental law to judges it cannot control. But to do so for the express purpose of dodging electoral accountability is worse. The administration’s aversion to Obamacare could certainly be defended. But the Constitution demands that it be defended in forums in which elected officials can be held accountable. A genuine ethic of constitutional restoration would not only permit but compel those officials to make and defend their choices. If Obamacare should be repealed wholesale, Republicans should stand up and do it. Those who say they value personal responsibility should not hide behind judicial skirts.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 18, 2018 at 09:13:18 am

Nice essay!
Absotively correct on the failure, the timidity of the Legislative Branch BUT left unsaid is any commentary on the "willingness" of the Judiciary to once again *graciouly* accept this peculiar form of Legislative *delegation.*

One could, however, take Weiner to be supportive of some of the burdensome obligations imposed by O-Care as he asserts that these requirements are "constitutional." Well, yes, BUT only if it is constitutional to require a business to commit suicide by accepting the notion of "after-the-fire" insurance sign-ups as proper; AND only if it is constitutional for the Federal Government to involve itself in every aspect of the nations economy and the citizens private interactions.

That is a rather broad understanding of the proper limits of governmental oversight.

(BTW: A nice essay in current issue of American Affairs Journal on congressional timidity).

read full comment
Image of gabe
on June 18, 2018 at 12:02:04 pm

Here's a bit from the Federalist about the House actually works.


I don't know where Weiner got the idea that the administration is in control of Congress.

read full comment
Image of EK
on June 18, 2018 at 12:17:19 pm

Very smart analysis of the heresy in republican political theology of praying that Article III priests and surgeons perform constitutional incantation and incision rather than demanding that Article One legislators do the people's work.

Down that path lays constitutional perdition. Don't get me started, but just for starters a) priestly intercession by lawyers rewrote the First Amendment's religion clause to privatize God (the greatest irony in the history of the constitution in the Supreme Court) and b) by prayer and plastic surgery lawyers reshaped the Fourteenth Amendment, so that the authors of both would recognize neither.

Yet, because the Republican Congress is unrepublican what are we to do to save the nation? By law ObamaCare was dead, yet through prayer and plastic surgery the priestly class raised it from the dead as Obama/RobertsCare. Perhaps prayer to the Article III priests can return it to eternal constitutional damnation since, as I said, the Article One folks are not republican (or they are otherwise occupied running for re-election.)

Oh, I forgot my disagreements with Weiner: SCOTUS' Lazrus-like restoration of ObamaCare was purely an unrepublican act of priestly intercession, whereas the current judicial challenge really does stand on solid constitutional legs. Rather than merely refusing to defend its remnants in court, Trump's DOJ should renew the legal challenge to ObamaCare, the essential contest of its constitutionality that Fr. Roberts aborted (talk about heresy:)

Alas, where Sessions doth fail (once again; so what else is new as to Santa's Little Helper?) the states must venture forth.

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on June 18, 2018 at 13:51:55 pm

Actually he said that Republicans were in charge of both. "Republicans fully control Congress and the White House" That doesn't imply that the administration is in control of Congress.

read full comment
Image of Dave
on June 18, 2018 at 14:39:04 pm

Granted, the current Congress normally has no problem with the White House signing any legislation they *do* manage to pass, however toxic it may be. However, they do have a problem getting much legislation through as they appear to have lost the ability to recognize that Democrats actually exist. The current Congress is so used to saying 'no' to anything that they have grave difficulty saying 'yes' (well, except for legislation designed to benefit the donor class). Far easier to shift responsibility to the courts, because it seems easier, and if the policies happen to be contrary to voters' welfare, well hey, not their fault!

read full comment
Image of excessivelyperky
on June 18, 2018 at 14:43:11 pm

I know, some still feel sad that the poor can still have health insurance, but don't worry, the courts will save you by telling 52 million people who have pre-existing conditions that they have no right to be covered. I'm sure none of them are registered voters. And none of them will bear a grudge in November, right? (though I suspect the case will Suddenly Be Delayed till *after* the election, the Republican tendency to tell sick people to hurry up and die will become more apparent as time goes by).

I have never quite understood why it's bad for poor people to have health care--does everyone want to get a side of drug-resistant TB with their orders at restaurants? (note that most restaurants don't offer sick days to their employees). After all, didn't Trump say that the Australian health care system was better than our own?

read full comment
Image of excessivelyperky
on June 18, 2018 at 15:49:16 pm

A note of clarification on my prior comment on Weiner's commentary:

Weiner's is a good general statement, civics class-like, of the importance in a constitutional republic of citizens expecting, indeed, demanding a) that elected representatives honor their constitutional obligations and do the heavy lifting of making and reforming the laws and b) that judges strictly confine their actions to interpreting the law, not writing it.

Weiner falls seriously short on republican constitutional analysis, however, in applying his general civics principles to the specific case of ObamaRobertsCare; i.e., his argument that the Trump Admin's refusal to defend Obama/RobertsCare in court and the states challenging it in court serve the purposes of encouraging the judges to evade b) supra and the Congress to evade a) supra, all the while allowing the states to assume the unconstitutional role of obstructing legitimate federal policy decisions.

T'aint so!

True, the Congress continues to evade its responsibility to repeal ObamaRobertsCare.
Cowards in Congress are more common than trees on Capitol Hill.

But what remains of the law is, indeed, subject to legitimate constitutional objection by the states, which have a constitutionally- protected interest worth defending in a federal republic of limited national powers. The dispute in court is not over policy but rather over Congress' attempt to exercise power it does not have, to the detriment of the states and their citizens.

That Congress continues to fail in its constitutional duty and that SCOTUS twice on ObamaRobertsCare failed to do its duty by literally rewriting the statute, does not mean that the states are wrong in principle to demand that, in its third try, the Court get it right.

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on June 18, 2018 at 16:49:49 pm

Gee, does that mean you support my claim for coverage for my ingrown toenail?
Stifle it, Edith! 52 MILLION! Actually, you are understating the case. More likely to be 300+ million.
1) everyone has a pre-existing condition of some nature.
2) Most employer policies cover pre-existing conditions (all of mine did)
3) What this perky little creature is objecting to id the fact that some conditions are not covered AND
4) That people will no longer be able to game the system and procure insurance only when they need it THUS
5) passing on the costs to their fellow citizens or bankrupting insurance companies
6) Perky also is apparently unable to distinguish between *INSURANCE* (a means of risk mitigation) and *HEALTHCARE* the actual treatment of disease / injury.


7) Wasn;t it the Great and Wise Obama who in a preview of his Death Panels (aka cost prevention boards, YEAH) commented: "Hey, let Granny take some pain pills"
Regrettably, there is no know medication capable of alleviating the immeasurable pain in the butt that the Big O and his O-Care caused the populace.

No go weep over my ingrown toenail! We wizards have better things to do.

read full comment
Image of gargamel rules smurfs
gargamel rules smurfs
on June 18, 2018 at 18:37:42 pm

In regards to The Defense of Marriage Act, it is important to note that neither Congress, nor The President of The United States, has the authority to remove the necessary requirement of a marriage contract, which is the ability and desire to exist in relationship as husband and wife, thus invalidating the validity of the marriage contract, while promoting marriage fraud and the sin of adultery, simultaneously.

We can know through both Faith and reason that p cannot in essence be, not p, and thus marriage cannot in essence be existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously. One can also know that there is no sex discrimination in marriage, as marriage consists of one man and one woman, existing in relationship as husband and wife.

If special marital privileges are granted to one group of persons who do not have the ability and desire to exist in relationship as husband and wife, then those same marital privileges must be granted to all persons not existing in relationship as husband and wife, which one could reasonably argue, would not serve "the health, safety, morals, and well being of the people".

Promoting " the health, safety, morals, and well-being of the people", for the good of the posterity and prosperity of our Nation, certainly falls within the scope of our Governing body, which has both the duty and the authority to promote the general welfare. Good Health Care, which is life-affirming and life-sustaining, certainly serves for the" health, safety, morals, and well -being of the people".

Thus while a reasonable person can agree that "citing the duty to adopt a saving construction if "fairly possible," the Chief Justice held that Section 5000A(a) was "constitutional[] because it can reasonably be read as a tax." Id. at 574-575", while recognizing that it is not necessary or proper to deny someone the ability to keep his/her existing plan or choose a plan that is consistent with one's desire for health, safety, morals, and well-being".

However, no one in the governing body had the authority to add the Unconstitutional Contraception Mandate to The Affordable Health Care Act, after the Act was passed, nor place an obscene fine , that was a gross violation of the principle of proportionality, for those who desired to provide Insurance Coverage sans contraception coverage, versus those who did not provide Insurance Coverage at all. violating The First as well as The Eighth Amendment of our Constitution due to animus. towards those who desire Health Insurance that is life-affirming and life-sustaining.

read full comment
Image of Nancy
on June 18, 2018 at 19:04:50 pm

If we were (subjunctive case) to return to the impacts on individual liberty implicit in the conditions discussed in the essay and in much of the commentary, we might (returning to Professor Weiner's "control of Congress" theme) find ourselves looking at the issue of the "function" of legislation (e.g., "Obamacare") in our society through our form of government.

Did, or does, that legislation exist for **purpose** -as a function?

Do we have a "purposive" government (that requires a Federal Administrative State) If so, should we not expect conflicts of the Rule of Law (even as it applies to duties of public authorities) with Purposive Government (See, Oakeshott and Hayek)?

So long as our election is for a Purposive Government, with its attendant Administrative State, we will likely (in fact, do) encounter such issues that would otherwise be resolved by Rule of Law governing public authorities- for the "purposes" of a Purposive Government continue to expand to the point of social, economic and (ultimately) political conflict.

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on June 18, 2018 at 21:34:52 pm

I've been reflecting further on the Weiner commentary and have decided that, despite its tidy "civics" lecture on Congress' failure to repeal Obamacare, it is seriously deficient in its analysis of the propriety of states seeking judicial relief from an unconstitutional law, attributing the pending lawsuit to an improper attempt to embroil the judiciary in an argument between the states and Congress over policy disagreements.

That is patent nonsense!

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on June 18, 2018 at 23:02:54 pm


In a sense this is no different than prosecutorial discretion. Not everything is to be charged -OR DEFENDED.

Moreover, I find it odd that Weiner, who in the past has written quite elegantly on the "institutional prerogatives" of ALL the Branches while simultaneously espousing the Madisonian position that ALL Branches are deemed competent to assess the constitutionality of any and all legislation, would now consider it proper to criticize the Executive Branch for its determination that the Rule (I cannot find it within myself to recognize this abortion of a statute as LAW), i.e., Obamacare is not worthy of constitutional defense.
One wonders could it have anything to do with the rather interesting fellow occupying the Executive Office?

As Pukka has stated, this is a somewhat *selective* lesson in civics.

read full comment
Image of gabe
on June 18, 2018 at 23:18:37 pm

Ahh! Richard. after a long day with the little buggers, aka grandchildren, you bring joy to my tired head.

YEP, it is clearly purposive!!! How else to account for a never ending series of edicts imposing numerous *obligations* upon the citizenry in all manner of circumstances previously considered the exclusive province of the individual citizen and / or his contracting partner(s).

It is also clear that the purpose is to usher in the New Enlightened One World, populated, well at least MANAGED, by the secular PRIESTS about which Pukka has written. Let there be no mistake - ALL MODERN LEGISLATION (I still cannot call them LAWS), Regulation has an express purpose and an incidental purpose. while ushering in this Bright Shining Pustule on the Hill, we are now doubt growing and aggrandizing the newly baptized mechanisms (on the verge of being completely "institutionalized) that serve as the instruments of those (illicit) purposes.

And the Legislative, in a counterintuitive fashion, aggrandizes itself while facially claiming modesty / humility in the face of these "new crises", deflecting blame to the very insturments it has empowered AND CREATED.
And this is done by the age old legerdemain of the politico. Blame the bureaucrats WHILE simultaneously "managing" those bureaucrats and their agencies in a behind the scenes fashion. (Think Charles Durning as the Fat Governor of Texas dancing up one staircase and then up the other - without ever descending in The Best Little whorehouse in Texas).


You thought earmarks were gone. Not so my friends. Look to the Administrative Agencies and you will find earmarks have had a Second Great Awakening! _ Oops, better not use that term. It may offend some perky little secularists and raise constitutional issues of separation. - Ha!)
On a serious note. Earmarks have morphed into Agency *determinations* / discretion and allow the Legislative Branch to exercise some measure of control over the very agencies they decry.

So Yep it is purposive on many fronts - not the least of which is the politico's purpose in getting reelected.

read full comment
Image of gabe
on June 19, 2018 at 09:51:21 am

Gabe asks of Weiner's curious commentary, "... could it have anything to do with the rather interesting fellow occupying the Executive Office?"
To which I answer, "Is the Pope Catholic?"

Uncertain as to whether one my age is permitted these days to say "right on", I will offer Gabe a "well said," surely not a phrase of cultural appropriation. "Selective," indeed, and guardedly-worded on this site are commentaries that MIGHT be construed as applauding decisions by Trump, even those that are strongly conservative and in the national interest. Numerous are those that are openly and unfairly critical of his presidency and his person and of populist conservatism.

Weiner's is a good example: Under the guise of a "civics" tutorial he finds opportunity to bemoan, not the Democrat President who lied as he labored to promote ObamaCare or the Democrat Congress that voted unanimously and passed ObamaCare or even the Congressional Democrats who voted unanimously to block its repeal, but rather Weiner faults (on grounds of republican principles) the Republican Congress that failed to repeal it (because of one Republican vote; thank you John McCain for yet another display of heroism under fire,)the Trump-supporting Republican states now challenging ObamaCare in court and the Trump DOJ for declining to litigate in its defense.

Bad legal analysis, poor conservatism and terrible political judgment by Weiner and many of his cohorts at L&L.
Depressingly tiresome too, watching soi disant conservatives participate in DemocRat firing squads.

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch
on June 21, 2018 at 08:21:29 am

The root problem is the GOP is free lunch in everything they want led by free lunch Trump who never feels he should pay for anything he wants.

By eliminating government in health care, except for members of Congress, health care will be free and abundant, and if not, simply blame obama, liberals, pelosi, the poor, the immigrants.

Of course, about 40% of health care workers in the U.S. are immigrants.

Obama care was a Republican solution crafted by Gov Romney, based on a Heritage plan, so the number one reason for opposing it is Obama proposed and got it passed and signed, and a few Republicans know that and they will only support a GOP replacement that meets the Heritage criteria.

But the GOP seems determined to create support for Medicare for All, which the GOP could not cut or end any more than they could end Medicare in the 80s, but instead only expanded it.

And the right-wing solution of reorganizing 60 million poor, sick, dependent people would only hurt business profits by slashing GDP.


Remember when saying things like young people should not be required to pay for old people. Everyone suffers the universal preX: every year you are a year older.

Unless you kill yourself at age 26 or 30....

read full comment
Image of Mulp
on June 21, 2018 at 09:50:29 am

"Mulp" writes like Joe Biden talks and Maxine Waters thinks, with hostile unintelligibility.

What the three have in common is the consequence of ideological education by the secular Jesuits of the public teachers' union.

read full comment
Image of Pukka Luftmensch
Pukka Luftmensch

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.