The Trump administration on Thursday night argued in a legal brief filed to the Supreme Court that the entire Affordable Care Act (ACA) should be invalidated.
The legal filing, while expected, makes official the Trump administration's position in the Supreme Court against the health law months ahead of the election, at a time when Democrats are hammering President Trump over his position on health care.
Overturning the ACA would take away health coverage for about 20 million people, and the stakes are even higher given the effects of the current pandemic.
The brief argues that because the law's requirement to have health insurance was upheld in court as a tax in 2012, and Congress has since repealed the financial penalty for violating that requirement, in 2017, it is no longer a tax and therefore no longer constitutional.
The administration says that because this one provision is invalid, the rest of the law is so intertwined with this provision that the entire law should fall, too.
"The entire ACA thus must fall with the individual mandate, though the scope of relief entered in this case should be limited to provisions shown to injure the plaintiffs," the Department of Justice writes.
Legal experts in both parties have widely criticized this argument as weak, saying Congress's intent in the 2017 tax law was clearly only to repeal the mandate penalty, not the entire Affordable Care Act.
Democrats quickly seized on the decision.
“President Trump and the Republicans’ campaign to rip away the protections and benefits of the Affordable Care Act in the middle of the coronavirus crisis is an act of unfathomable cruelty," Speaker Nancy Pelosi (D-Calif.) said in a statement.
The DOJ filed the brief late at night on Thursday, and many Republicans view the continued lawsuit as a political headache.
Vulnerable Republican lawmakers up for reelection have largely dodged questions about their positions on the lawsuit, as Democrats' defense of the ACA helped the party win back the House in 2018 as the law gains popularity.
The case will not be decided until after the election, likely in Spring of 2021, meaning it will hang over the campaign until November.
Most legal observers think the current makeup of the Supreme Court would rule to uphold the law, especially given that Chief Justice John Roberts has already upheld it in two previous ObamaCare cases, but nothing is ever certain at the high court.
And if President Trump gets the chance to appoint another justice, the calculus could change.
The case against the law is being led by Texas and a group of GOP-led states. California and a group of Democratic-led states are defending the law after the highly unusual decision by Trump's Justice Department not to defend it, given the DOJ traditionally defends federal laws in court.
"Just so you understand, ObamaCare is a disaster,” Trump told reporters last month, adding: "What we want to do is terminate it and give great healthcare."