Kirkland & Ellis partner Paul Clement, the veteran appellate advocate and former U.S. solicitor general, has joined a chorus of conservative lawyers questioning the Justice Department's decision to stop defending the Affordable Care Act.

Clement, speaking on a panel Wednesday at the Federalist Society's annual executive branch review conference in Washington, said there are potential “costs to the system” when the Justice Department doesn't defend federal laws under a traditional duty to defend acts of Congress.

He drew parallels to the Obama Justice Department's decision to stop defending the Defense of Marriage Act, the 1996 law that prohibited federal recognition of same sex marriage. Clement, who advocated in support of the Defense of Marriage Act on behalf of U.S. House members, lost in the Supreme Court in the case United States v. Windsor in 2013. Clement argued against the Affordable Care Act at the Supreme Court soon after its adoption during the Obama administration.

“I think my litigation past shows I'm not a super fan of the Affordable Care Act as a policy matter or as a federalism matter,” Clement said Wednesday. “But I think there's an argument to be made that, in both of those cases, the Justice Department should have stayed with its traditional policy of defending acts of Congress even though they're quite unpopular politically with the administration that's in place at that point.”

Clement continued: “I do worry that this is something where we could get into a race to the bottom, or the top.” He added: There are “coherent theoretical” arguments supporting the idea that the executive branch shouldn't always be required to defend laws it disagrees with. “But that hasn't been the policy of the Justice Department for, essentially, ever. The tradition has been that, in cases that don't implicate executive power, you make an argument—if there is a good faith argument to be made—in defense of the statute,” he said.

Clement said the duty-to-defend policy is the “right policy from a separation of powers standpoint. I do think that the responsibility to defend acts of Congress when they are challenged as unconstitutional is part and parcel of the executive authority vested in the president in Article II and it's not part and parcel of the authority vested in Congress in Article 1 or the state [attorneys general], who are happy to jump in and defend, as well, in the case of the ongoing litigation over the ACA.”

Ruling in a lawsuit brought by Texas and other Republican-led states, U.S. District Judge Reed O'Connor of the Northern District of Texas said the congressional action—which zeroed out the penalty imposed by the health care law's individual mandate—rendered the entire health care law unconstitutional. Congress, however, left in place the Affordable Care Act. Legal scholars have pilloried O'Connor's ruling, calling it “embarrassingly bad.”

The Justice Department has faced widespread criticism since it dropped its defense of key parts of the Obama-era health law last year in the wake of a tax law passed in December 2017. Since then, the Trump administration has only dug in, notifying a federal appeals court this month that it agreed with a lower court's interpretation that the entire law should be struck down.

Numerous amicus briefs from Big Law attorneys are backing the Affordable Care Act, which is being defended by the Democrat-led U.S. House of Representatives, California and other states in the U.S. Court of Appeals for the Fifth Circuit. Several conservative groups, including Citizens United and Gun Owners of America, filed a brief late Wednesday backing Texas and the Justice Department.

Clement, a former solicitor general during the George W. Bush administration, is not involved in the Fifth Circuit's Affordable Care Act case. But he is currently counsel of record to an insurer in an Affordable Care Act case—against the Justice Department—at the Supreme Court.

Clement and a Kirkland team represent Oregon-based Moda Health in its quest to force the government to pay more than $12.3 billion in damages to health insurers through the Affordable Care Act's “risk corridor” program.

Participating in the Affordable Care Act's exchanges presented business risks for health insurers, and the risk corridors program, operating from 2014 to 2016, was designed to use cash from thriving health plans to reimburse other health providers whose costs exceeded premiums. Clement has accused the government of a “staggering” bait-and-switch in stopping those payments to insurers.

The government claimed in a filing Wednesday that any obligation to make those payments was voided when Congress “expressly prohibited” the Health and Human Services Department from continuing to make payments.

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