June 8, 2018
Last week, the Department of Justice (DOJ) responded to the Utah Attorney General’s motion, in partnership with 19 other states, to preliminarily enjoin the Affordable Care Act’s individual mandate. The DOJ agreed with Utah that the individual mandate is unconstitutional.
The DOJ will not defend the mandate or two other parts of the ACA that DOJ conceded were not severable from it: the guaranteed-issue and community-rating provisions. We believe the DOJ’s response strengthens the merits of Utah’s case against the ACA.
Attorney General Sean Reyes released the following statement in response to the DOJ’s brief:
From the beginning, Utah has argued that the ACA mandate was an unconstitutional overreach by the federal government. The U.S. Supreme Court upheld the act by finding that the mandate could be construed as a tax. When Congress reformed the tax system in December 2017, it removed the tax penalty for failing to comply with the mandate. That change eliminated the basis for the Court’s decision to uphold the ACA’s constitutionality.
Given that change, Utah joined nearly two dozen of our sister states in a new lawsuit seeking to strike down the law. The individual mandate cannot be severed from two other parts of the Affordable Care Act (the Guaranteed Issue Provision and Community Rating). Because the mandate is unconstitutional, those two elements must fail as well.
The DOJ has now acknowledged the problems with the statue. Its position is a concession that our arguments are correct. This strengthens our case, and we look forward to seeing if the district judge agrees.
For a copy of the document of the DOJ’s response, click here: 92 Federal Defendants’ Response to Plaintiffs’ Application for Preliminary Injunction. You can find a copy of the original lawsuit here: Texas, Wisconsin et al v. U.S. et al – ACA Complaint (02-26-18).
Update: The Deseret News posted this story – Utah AG: Feds not defending ACA provisions ‘strengthens our case’ to nix whole law.