Texas Fold'em: Apparently even the GOP plaintiffs aren't happy with the DoJ's new position
Last week, a blog post over at the Georgetown Center on Health Insurance Reforms called my attention to a seemingly bizarre change of stance by the Trump Justice Department as to what the final ruling should be in the idiotic #TexasFoldEm anti-ACA lawsuit being brought by 20 (now 18) Republican state attorneys general:
Now, DOJ is changing its position again. In supplemental briefings to the Fifth Circuit Court of Appeals, DOJ states that any invalidation of the ACA should “not extend beyond the plaintiff states….” As a remedy, DOJ argues that the court should invalidate the ACA only in the states that brought suit. In effect, if the court were to follow DOJ’s scheme it would mean striking down the ACA in the eighteen plaintiff states, but allowing it to remain intact in the thirty-two other states.
Aside from the logistical and legal nightmares this would cause to attempt to enforce (which was the subject of the CHIR blog), this left many people scratching their heads. Since the Trump Administration agrees with the plaintiffs that the ACA should be ruled unconstitutional, and since Trump has been extremely vocal about his desire to have the entire law struck down, why on earth would they now be asking for it to only be struck down for 36% of the population?
It turns out there's even more to the story than that, as Amy Lotven of Inside Health Policy reported at the time (from early July):
Oral Arguments Show New Gulf Between DOJ, GOP Plaintiffs In ACA Case
Tuesday’s oral arguments in the high-profile case over the future of the Affordable Care Act exposed a new gulf between the Trump administration and the GOP plaintiffs on the potential outcome of Texas v. United States...The Department of Justice also affirmed it believes U.S. District Judge Reed O’Connor’s ruling to invalidate the entire law only applies to the GOP plaintiff states, another recent position switch that the GOP AGs told the appeals court Tuesday is an apparent “bait and switch” from what the Trump administration told the lower court.
DOJ also still agrees that the individual mandate is unconstitutional without a penalty and wants the court to declare that the rest of the law cannot be severed. But DOJ would like the case remanded to the district court to take up the administration’s suggested narrower remedy.
...Hawkins also told the panel that the states had requested a nationwide injunction and believed that what’s they got from O’Connor.
In district court, the GOP states had asked for injunctive and declarative relief. The government had said there was no need to issue the injunction because that is how the administration would treat the court’s order. Now that the government's supplemental briefing suggests an injunction would only apply to the 18 plaintiff states, that’s a different message and the GOP states said they will evaluate options going forward.
...DOJ believes that a judgment likely would not bind the non-plaintiff states.
A lot would need to be sorted out, and the question of which parts of the law would apply in which states raises many complicated issues, he said. In the interim, the DOJ is happy to have a stay in place until the issue is resolved, he added.
It sounds to me as though instead of the DOJ arguing that the entire law be struck down in the 18 plaintiff states while the entire law is kept in the rest of the country, they're actually saying that they should get to decide which parts of the ACA get to be kept or stricken in which states.
If I'm correct about that interpretation, it's even worse than the already-headache-inducing concept of striking the ACA down "root & branch" in some states while keeping it en masse in others, because it basically gives Trump cart blanche to pick & choose as he pleases.