AG Barr Hacks Away At Rule Of Law

Attorney General Bill Barr is on a roll. Fresh off his highly legalistic and cryptic letter summarizing the results of the Mueller investigation, Barr has now apparently instructed the DOJ to once again throw out precedent and refuse to defend an existing law passed by the US Congress and signed by the President.

The first clause of the mission statement of the Department of Justice is “[t]o enforce the law and defend the interests of the United States according to the law”. That has historically meant defending existing law from legal challenges even if the administration currently in power may object and oppose that law as its own policy as long as reasonabe arguments can be made for the law’s constitutionality. The reason for this precedent is rather obvious as it would be presumptuous of the DOJ to argue that a law passed by the Congress and signed by the President is, on its face, unconstitutional. There are rare exceptions to this precedent and they occur in three main areas. First, the DOJ may not defend a law when an intervening Supreme Court decision has effectively rendered the law unconstitutional, effectively eliminating any reasonable argument for defending it. Second, the DOJ may stray from precedent if they believe the statute in question somehow impinges on the power of the President. Lastly, in the rarest of cases, the DOJ may opt to not a defend a law that the President has deemed unconstitutional. This usually occurs when a President vetoes a bill, claiming it is unconstitutional but Congress then Congress overrides that veto.

The law that Barr and the Trump DOJ is refusing to defend is, of course, the ACA. And the decision of a district court judge in Texas that Trump, Barr, and the DOJ will now support is so devoid of logic and grounding in constitutional principles that there was some doubt that the radical Fifth Circuit Court of Appeals would even uphold it. For those interested in the gory details, I have an extensive write-up of the decision in an earlier critique of the Fifth Circuit here. But, suffice it to say, the twisted logic that the judge had to employ to reach his purely political conclusion is something to behold. It is this decision that Barr and the DOJ will now by supporting despite there being a multitude of reasonable arguments for why the ACA remains constitutional.

There is no evidence that Barr and the DOJ have any real rationale for this action that would fit within the three parameters that would allow for an exception to the policy of defending existing law. Simply saying the President thinks it is unconstitutional is hardly a valid reason as the President has clearly shown that he thinks anything he disagrees with is probably unconstitutional. Even worse, Barr is throwing this precedent away to pursue a strategy that will almost surely result in failure. It is highly doubtful that even the current Supreme Court will uphold this judge’s decision, especially after the reports about John Roberts’ horse trading that resulted in upholding the ACA but letting states opt out of Medicaid expansion. Of course, with this Court, you never know.

Needless to say, deciding that the ACA is unconstitutional is the equivalent of outright repeal that Congress rejected less than two years ago. It would result in over ten million people losing access to health care and tens of thousands of unnecessary deaths in the coming years.

Politically, this is an incredible boon to the Democrats, allowing them to highlight their laser-like policy focus on health care that propelled them in the 2018 election. It once again puts the spotlight on the unceasing attempts by the Trump administration and Republicans in general to deny health care to millions of Americans and consign thousands to premature deaths. In addition, the fact that the DOJ is ignoring a very strong precedent and its own stated policies also illustrates that Attorney General Barr is the political hack that Democrats feared he would be and provides further ammunition to press for the full release of the Mueller report.

But by far the most damaging aspect of Barr’s decision is that it destroys another pillar of the rule of law and now opens up every statute passed by a prior Congress and signed by a prior President to challenge from a new administration simply because it does not like the law. That is recipe for chaos, destroying the continuity of justice and further weakening one of the strongest underpinnings of our democracy. In other words, Barr is simply continuing the general policies and principles of the Trump administration that seem designed to erode our democratic system.