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

Conservative Action Project — Wednesday, March 27, 2019

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President Trump took a bold and principled stand when he repealed the tax element of the individual mandate.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
Chairman
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
President
FreedomWorks
David Bozell
President
ForAmerica
Ed Corrigan
Vice Chairman, Conservative Action Project
Executive Director, Senate Steering Committee (2003-2012)
The Honorable Kenneth T. Cuccinelli, II
President
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
Chairman
Tea Party Patriots Citizen Fund
The Honorable Bob McEwen
U.S. House of Representatives
Former Member, Ohio
The Honorable David McIntosh
President
Club for Growth
Cleta Mitchell, Esq.
Partner
Foley & Lardner LLP
Noah Wall
Vice President of Advocacy
FreedomWorks
William L. Walton
Chairman
CNP Action, Inc.
Matt Schlapp
Chairman
American Conservative Union (ACU)
Dan Schneider
Executive Director
American Conservative Union (ACU)
Tom McClusky
President
March for Life Action
The Honorable T. Kenneth Cribb, Jr.
Chief Domestic Advisor
President Ronald Reagan (1987-1988)
Tim Chapman
Executive Director
Heritage Action for America
The Honorable Colin A. Hanna
President
Let Freedom Ring, Inc.
The Honorable Becky Norton Dunlop
White House Advisor
President Ronald Reagan (1981-1985)
Lt. Gen. William G. Boykin (Ret.)
Executive Vice President
Family Research Council
L. Brent Bozell, III
Founder and President
Media Research Center
Daniel Perrin
President
The HSA Coalition
David N. Bossie
President
Citizens United
The Honorable Donald Devine
Former Director
U.S. Office of Personnel Management
Dr. Floyd Brown
Chairman
America Fighting Back PAC
Donna Rice Hughes
CEO
Enough Is Enough
The Honorable Tom DeLay
Former Majority Leader
U.S. House of Representatives
Kristan J. Hawkins
President
Students for Life of America
Students for Life Action
Rod D. Martin
Founder and CEO
The Martin Organization, Inc.
Sherri R. Martin
Executive Vice President
The Martin Organization, Inc.
Haley E. Martin
President
The Martin Foundation
Nicholas Stehle
Campaign for the American Future
Shawn A. Mitchell
Former National Chaplain
National Federation of Republican Assemblies (NFRA)
Jerry Melvin
Former Dean
Florida House of Representatives
Lew Uhler
President
National Tax Limitation Committee
Melissa Ortiz
Visiting Fellow
Independent Women’s Forum
Janice Shaw Crouse, Ph.D.
Crouse Institute: Faith, Family, Culture
Virginia Armstrong
National Court Watch Chairman
National Eagle Forum
Mike Spence
Founding President
Conservative Republicans of California
The Honorable Bob Adams
Revive America PAC
William W. Pascoe, III
Board Member
Tea Party Patriots Action
Joseph A. Morris
Former Asst. AG, Reagan-Meese DOJ
Partner, Morris & De La Rosa
Seton Motley
President
Less Government
Sean Noble
President
American Encore
Ron Robinson
President
Young America’s Foundation
Lee Beaman
CEO
Beaman Automotive Group
Jerome R. Corsi, Ph.D.
Founder and CEO
CorsiNation.com
Dr. Peter Thomas
Chairman
Conservative Caucus
Bob Carlstrom
President
The Carlstrom Group, LLC
Amapola Hansberger
President
Legal Immigrants for America
C. Preston Noell III
President
Tradition, Family, Property, Inc.
Willes K. Lee
President
National Federation of Republican Assemblies
Mat Staver
Founder and Chairman
Liberty Counsel
Allen J. Hebert
Chairman
American-Chinese Fellowship of Houston
William Shaker
CEO
Washington Marketing Group
Roxanne Phillips
Member, Executive Committee
Council for National Policy
Susan A. Carleson
Chairman/CEO
American Civil Rights Union
Charlie Copeland
President
Intercollegiate Studies Institute
Sal Russo
Co-Founder and Chief Strategist
Tea Party Express
Anne Schlafly Cori
Chairman
Eagle Forum
Ellen Grigsby
Director of Institutional Partnerships
Open Doors USA
Judson Phillips
Founder
Tea Party Nation
Ming Hsin Schroeder
Retired
Dr. Richard Rounsavelle
Trustee
Media Research Center
Jake Hoffman
President & CEO
Rally Forge
Robert K. Fischer
Meeting Coordinator
Conservatives of Faith
Randy M. Long
CEO
Long Business Advisors, LLC
Melvin Adams
Past President
Renewanation
Dr. Frank Wright
CEO
D. James Kennedy Ministries
Joan Lindsey
President
Lindsey Communications
J. Keet Lewis
Co-Founder
Lewis Group Intl.
Benjamin Case
CEO
Focused On Fundraising, Inc.
James L. Martin
Founder/Chairman
60 Plus Association
Saulius “Saul” Anuzis
President
60 Plus Association

All organizations listed for IDENTIFICATION purposes only.

The Conservative Action Project (CAP) was founded in 2008 by many conservative leaders, with former Attorney General Edwin Meese III serving as Founding Chairman. The group works to facilitate conservative leaders working together on behalf of common goals. CAP routinely issues "Memos to the Movement" demonstrating consensus among conservatives on key issues.