The Trump administration’s Department of Justice will not defend in court the constitutionality of the Affordable Care Act’s consumer protections, including the ban on discrimination against people with pre-existing medical conditions, it announced Thursday. While Attorney General Jeff Sessions is far from the first to opt not to defend a law he deems unconstitutional, many prominent Republicans — including Sessions himself — were highly critical of the practice just a few years ago.
Back in February 2011, President Barack Obama’s Attorney General Eric Holder announced that his DOJ would no longer defend the unconstitutional Defense of Marriage Act (commonly known as “DOMA,” it was a 1996 law that prohibited federal recognition of same-sex marriages). Outraged, GOP leaders criticized the move as an abdication of the DOJ’s duty and some urged Holder’s resignation and budget cuts to the department. A House resolution condemning the decision garnered 123 sponsors and co-sponsors, including then-Reps. Mike Pence, Mike Pompeo, and Mick Mulvaney. Former Speaker of the House Newt Gingrich, then a Republican presidential hopeful, even briefly floated the possibility of presidential impeachment.
The anti-LGBTQ Sessions, then a Republican senator from Alabama, was among the most vocal. At a March 2011 confirmation hearing for the Solicitor General, he said that Holder should have stood up to Obama and resigned, rather that stopping his DOMA defense. “[T]he Attorney General should have told the President, ‘I know you may have changed your mind, Mr. President, but this is a statutory law passed by the Congress of the United States, it’s been upheld Constitutionally and it has to be defended. We cannot fail to defend that statute. And then what happens? I think what happens is the President says, ‘okay, I wish we could….’ And I think he would have backed off. If not, then you have to resign.”
His view that the administration was obligated to defend laws they disagreed with was echoed by many others on the right at the time:
Rep. Jim Sensenbrenner (R-WI)
“My concern on this, Mr. Attorney General and it’s deeply troubling, is that the President has decided to usurp the function of Congress in making laws which a former president has signed and also to usurp the function of the courts by saying that this law is unconstitutional when that’s not his job. I guess what I can say is, I would certainly support an effort to have the cost of Congress’ defending this provision that the President and you have refused to do so, come out of the Justice’s appropriation.”
Rep. Jim Jordan (R-OH)
“The American people deserve to know that their President will uphold and defend the laws of the United States.”
Rep. Lamar Smith (R-TX)
“The policy of defending federal laws, which Attorney General Holder
promised to follow at his confirmation hearing, protects our constitutional system. By abandoning this policy, the Administration has reversed the normal roles
of the three branches of government. It has shirked the executive branch’s
responsibility to enforce the law, undermined Congress’s role in making law, and
invited courts to make policies that should be made by the elected branches of
Rep. Vicky Hartzler (R-MO)
“Once we start going down the road of selectively enforcing our laws we are headed for chaos. President Obama took an oath to uphold the laws of the United States and he is breaking his word to the American people.”
Rep. Steve King (R-IA)
“I don’t necessarily put this at the feet of Eric Holder, although an Attorney General with a constitutional conscience would resign before he would go along with a directive to refuse to enforce the law.”
If President Obama won't redirect Holder's DOJ to aggressively defend U.S. DOMA law, I will move aggressively to cut their budget.
— Steve King (@SteveKingIA) February 25, 2011
Sen. Orrin Hatch (R-UT)
“I know that if President Obama had his druthers, DOMA would not exist. But the Justice Department’s duty is, thankfully, not defined by the President’s druthers. Its duty is to make reasonable arguments in defense of a statute.”
Former Gov. Mitt Romney (R-MA), now a Utah Senate candidate:
“[President Obama] has an obligation as chief executive to enforce and defend the laws of the nation. He should not abdicate that responsibility based on his own interpretations and personal views.”
Former Gov. Tim Pawlenty (R-MN), now again seeking that office:
“The job of the Justice Department is to enforce and defend laws passed by Congress and signed by the President. I am disappointed that the President and his Justice Department have abdicated this responsibility, all for the sake of partisan political gain.”
Trump confidant and Fox News host Sean Hannity:
“It’s almost like total anarchy. Because they can’t get their way, this is how they act … [Anti-LGBTQ activist Maggie Gallagher called it] an extra-constitutional end-run around democracy. She’s right.”
Heritage Foundation founder and former president Edwin Feulner:
“Congress shouldn’t passively accept this challenge to its authority. Apart from anyone’s personal views on marriage is this unavoidable fact: The executive branch of our government (the president) is obligated, under the Constitution, to enforce the laws passed by the legislative branch (Congress).”
It does not appear that any of these individuals have yet made similar statements about the Trump administration’s decision not to defend the ACA, and Sessions has not yet resigned in protest of his own decision.
The House GOP majority, under then-Speaker of the House John Boehner (R-OH), spent millions of taxpayer dollars to hire outside lawyers to defend DOMA in the DOJ’s place. A spokesperson defended the spending as vital: “As long as the Justice Department refuses to defend the law of the land, Congress has a constitutional responsibility to do so.”
A spokesperson for Speaker of the House Paul Ryan (R-WI) did not immediately respond to a ThinkProgress inquiry about whether he will direct a similar effort to defend the Affordable Care Act in court.