Trump-Barr Justice Department Correct to Argue that Obamacare Unconstitutional, Must Be Struck Down Entirely

March 27, 2019
Washington, D.C.
Signatures updated 3/28/19

Conservatives applaud President Donald Trump’s Department of Justice informing a federal appeals court that its individual mandate is unconstitutional and cannot be severed from the Affordable Care Act (ACA), and thus that the courts must strike down Obamacare entirely.

President Trump took a bold and principled stand when he repealed the tax element of the individual mandate. That took away the fig leaf that prevailed at the Supreme Court by a 5-4 vote to save the essential heart of Obamacare. Moreover, the President’s tax cut left in federal law all the congressional findings about how the individual mandate is essential to Obamacare functioning.

Those congressional findings include that the individual mandate “is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market.” Congress repeated for emphasis that the mandate “is essential to creating effective health insurance markets.”

Most unconstitutional laws are only partially unconstitutional. Typically a court will strike down an invalid provision, then sever it from the rest of the statute, to preserve the rest of the statute.

But the Supreme Court has held numerous times over many years that sometimes an unconstitutional provision cannot be severed from a statute, and so the entire law must go down. An invalid provision cannot be severed from a statute if either the remaining provisions of the statute no longer “function in a manner consistent with the intent of Congress,” or if Congress would not have passed the law as it is written without that invalid provision.

Congress’s findings make clear that the ACA cannot function in the manner Congress intended without the individual mandate. That makes Section 1501 of the ACA – which is the individual mandate – nonseverable from the other 450 sections of that statute. And Congress would not have passed the countless billions in costs arising from the other sections without an individual mandate to offset at least part of those costs. The individual mandate therefore fails both prongs of the Supreme Court’s severability test.

Texas Attorney General Ken Paxton was right to lead a twenty-state legal challenge arguing that President Trump’s repeal of the individual mandate means the entire law is unconstitutional. The multi-state coalition made their argument extremely well, and earned victory in the federal trial court.

President Trump’s decision to have his Justice Department support the Texas-led coalition deserves the support of all conservatives, and is a prime example of presidential leadership—particularly as Congress has repeatedly failed to address full repeal. The ACA is still being defended by various Democrat attorneys general, so this matter will still have its day in court.

The United States does not have a healthcare crisis; it has a healthcare financing crisis. Americans have the best healthcare system in the history of the world, and the challenge for policymakers is how to make health insurance more affordable, accessible, portable, and sustainable.

Conservatives support President Trump’s ongoing efforts to liberate the nation from the stifling regulatory burden and costs of Obamacare, and look forward to working with the President to enact free-market based health finance reforms once Obamacare no longer prevents those efforts.

The Honorable Edwin Meese III
Attorney General
President Ronald Reagan (1985-1988)
Alfred S. Regnery
Chairman, Conservative Action Project
Chairman, Law Enforcement Legal Defense Fund
The Honorable J. Kenneth Blackwell
Constitutional Congress, Inc.
Diana Banister
President and Partner
Shirley & Banister Public Affairs
Kenneth A. Klukowski, Esq.
Senior Fellow
American Civil Rights Union
Rachel Bovard
Policy Director
Senate Steering Committee (2014-2015)
Adam Brandon
David Bozell
Ed Corrigan
Vice Chairman, Conservative Action Project
Executive Director, Senate Steering Committee (2003-2012)
The Honorable Kenneth T. Cuccinelli, II
Senate Conservatives Fund
The Honorable Jim DeMint
Member, South Carolina
United States Senate (2005-2013)
Myron Ebell
Director, Center for Energy and Environment
Competitive Enterprise Institute
Jenny Beth Martin
Tea Party Patriots Citizen Fund
The Honorable Bob McEwen
U.S. House of Representatives
Former Member, Ohio
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Club for Growth
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Foley & Lardner LLP
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Vice President of Advocacy
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CNP Action, Inc.
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American Conservative Union (ACU)
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American Conservative Union (ACU)
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March for Life Action
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President Ronald Reagan (1987-1988)
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Heritage Action for America
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Let Freedom Ring, Inc.
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White House Advisor
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Family Research Council
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Media Research Center
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The HSA Coalition
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Citizens United
The Honorable Donald Devine
Former Director
U.S. Office of Personnel Management
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America Fighting Back PAC
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Enough Is Enough
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Former Majority Leader
U.S. House of Representatives
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Students for Life of America
Students for Life Action
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Founder and CEO
The Martin Organization, Inc.
Sherri R. Martin
Executive Vice President
The Martin Organization, Inc.
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The Martin Foundation
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Campaign for the American Future
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Former Dean
Florida House of Representatives
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National Tax Limitation Committee
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Independent Women’s Forum
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Crouse Institute: Faith, Family, Culture
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National Court Watch Chairman
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Founding President
Conservative Republicans of California
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Revive America PAC
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Tea Party Patriots Action
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Former Asst. AG, Reagan-Meese DOJ
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Seton Motley
Less Government
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American Encore
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Young America’s Foundation
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Beaman Automotive Group
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The Carlstrom Group, LLC
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Legal Immigrants for America
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Tradition, Family, Property, Inc.
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National Federation of Republican Assemblies
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Liberty Counsel
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American-Chinese Fellowship of Houston
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Council for National Policy
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Long Business Advisors, LLC
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60 Plus Association

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