Faced with a challenge by 20 attorneys general in a federal court in Texas, the Affordable Care Act (ACA) is going to trial with no defense from the Trump administration’s Department of Justice (DOJ).

justice-department-won't-defend-the-acaThe case rests on the constitutionality — or unconstitutionality — of the health care act now that the individual mandate has been withdrawn as a penalty for those lacking insurance.

The argument is built upon the fact that the ACA survived its Supreme Court constitutionality test only after Chief Justice John Roberts concluded the mandate was really a tax and thus Congress had the power to pass the legislation. His four conservative fellow justices wholeheartedly disagreed.

While the government “does not have the power to order people to buy health insurance,” the chief justice wrote for the majority, it “does have the power to impose a tax on those without health insurance.”

The Trump DOJ, in announcing it would not defend the act in court, evidently agrees with those four dissenters — and not with John Roberts — because it is now calling the individual mandate unconstitutional. It filed a brief so declaring this stance with the Texas federal court where the case will be heard. The DOJ also sent a letter to the House and Senate declaring its position.

The DOJ, in a less logical conclusion, also said the ACA’s proscription against denying insurance to those with pre-existing conditions is also unconstitutional, while all other parts of the law are constitutional. The attorneys-general who filed the suit maintain that, if the mandate is unconstitutional, every other part of the ACA is also.

Break with Tradition

“I am at a loss for words to explain how big of a deal this is,” said University of Michigan law professor Nicholas Bagley in a blog post. “The Justice Department has an obligation to defend the law and it has refused to do so because it dislikes this particular law.”

Though the DOJ is going to be absent, 16 attorneys-general from ACA-friendly state governments and the District of Columbia have asked for — and received — permission to defend the ACA during the proceedings. The coalition of ACA proponents also filed a brief with the court on Thursday, when all briefs were due.