By The Washington Post Editorial Board
THURSDAY BROUGHT a sad moment for the Justice Department. The department filed a brief in a frivolous legal challenge to the Affordable Care Act, also known as Obamacare. But instead of following nearly all past practice, the department sided with the challengers. Defending major, duly passed federal statutes is a core Justice Department responsibility. If it defended only laws the president liked, uncertainty about the permanence of many laws would reign, particularly as the presidency changed hands.
There is some precedent for the Justice Department’s move. During the Obama presidency, the department declined to defend the Defense of Marriage Act, a law that, though noxious, Congress passed and President Bill Clinton signed. Government lawyers should have defended it up to the point at which the Supreme Court ruled it unconstitutional. By declining to do so, they inadvertently gave the department’s current leadership some cover to refuse to defend Obamacare.
Yet there are big differences. The Defense of Marriage Act, which denied federal benefits to legally united same-sex couples, was so obviously rooted in prejudice that it posed a major threat to important constitutional principles. The challengers to that law had by leaps and bounds the better side of the argument. The latest challenge to Obamacare, by contrast, is harebrained.
The editorial concludes:
The nation’s premier law enforcement agency built a reputation for evenhandedness and independence over the course of decades. That reputation is now more in danger than it has been since Watergate. The threat derives not from self-serving accusations that Justice officials conspired against Mr. Trump but from Mr. Trump and his enablers politicizing the department.
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