This is a really important story that isn’t getting much play outside of #appellatetwitter. I’ll scope about it shortly
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My service is weak here, so I'm reduced to tweeting.
Basically the DOJ is refusing to defend Obamacare in Court, on the grounds that they think it's unconstitutional. This is not good, and I say this as someone who is not a fan of the ACA by any stretch.
Basically the DOJ is refusing to defend Obamacare in Court, on the grounds that they think it's unconstitutional. This is not good, and I say this as someone who is not a fan of the ACA by any stretch.
The norm prior to the Obama administration was that administrations would defend *even those laws they disagreed with* in court so long as there were non-frivolous arguments that those laws were constitutional.
Obama and Holder arguably shredded this norm when they refused to defend section 3 of DOMA in court, even though there were very clearly non-frivolous arguments to defend the statute.
Here, the Trump admin is taking this even further, by going so far as to refuse to defend the ACA on *unbelievably silly* grounds.
This is bad bad bad bad.
This is bad bad bad bad.
This is actually a really important norm that could really mess up the way government works. If administrations will only defend laws they agree with (the logical end point of this silly game), a number of nasty consequences ensue
1) Logically, if the executive can decline to defend a statute based on frivolous constitutional grounds, it can decline to enforce statutes on those grounds as well
Think about immigration from this perspective
Think about immigration from this perspective
There are also problems specific to litigation this causes
If DOJ won't defend a statute when the government is a defendant - no one else really has standing to do it
Courts could get in the habit of appointing amici (friends of the court), but that's unwieldy
If DOJ won't defend a statute when the government is a defendant - no one else really has standing to do it
Courts could get in the habit of appointing amici (friends of the court), but that's unwieldy
Basically this is just fucking terrible, Obama and Holder deserve the lion's share of the blame, but this is not one of those spots where "what's good for the goose is good for the gander" should be the operative rule
And, of course, the brilliant @isamuel and Leah Litman got out in front of this one and wrote a solid piece on this
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