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Protesters speak out against the Affordable Care Act in front of the Supreme Court during a previous legal challenge. Photo: Brooks Kraft LLC/Corbis via Getty Images

The Justice Department will not defend the Affordable Care Act in court, and says it believes the law's individual mandate — the provision the Supreme Court upheld in 2012 — has become unconstitutional.

Why it matters: The Justice Department almost always defends federal laws when they're challenged in court. Its departure from that norm in this case is a major development — career DOJ lawyers removed themselves from the case as the department announced this shift in its position.

The details: The ACA's individual mandate requires most people to buy insurance or pay a tax penalty. The Supreme Court upheld that in 2012 as a valid use of Congress' taxing power.

  • When Congress claimed it repealed the individual mandate last year, what it actually did was drop the tax penalty to $0.
  • So the coverage requirement itself is still technically on the books. And a group of Republican attorneys general, representing states led by Texas, say it's now unconstitutional — because the specific penalty the Supreme Court upheld is no longer in effect.
  • The Justice Department agreed with that position in a brief filed Thursday night.
  • DOJ said the courts should strike down the coverage requirement, as well as the provision of the law that forces insurance companies to cover people with pre-existing conditions.

Between the lines: For the Justice Department to stop defending a federal law is not unprecedented — the Obama administration did it with the Defense of Marriage Act. But it is exceptionally rare.

Yes, but: A group of Democratic attorneys general has been granted permission to defend the ACA in this case, so someone will be in its corner.

What to watch: The argument against it is by no means a slam dunk. For starters, critics — now including the Justice Department — will have to prove that people are still being injured by the remaining shell of the individual mandate, even without a penalty for non-compliance.

Get more stories like this by signing up for our daily health care newsletter, Vitals. 

This story has been updated to note that the Obama administration stopped defending the Defense of Marriage Act.

Go deeper

Warren opposes Fed chair Powell's renomination, calls him a "dangerous man"

Elizabeth Warren speaks during a hearing before Senate Armed Services Committee on Sept. 28. Photo: Alex Wong/Getty Images

Sen. Elizabeth Warren (D-Mass.) questioned Federal Reserve Chair Jerome Powell's record on financial regulation during a hearing Tuesday, calling him a "dangerous man" and saying that she would not support his renomination for a second term.

Driving the news: While the Fed chair’s term expires in early 2022, President Biden is expected to make a decision this fall on whether to reappoint Powell or nominate another candidate.

Updated 40 mins ago - Politics & Policy

Top Pentagon officials contradict Biden on Afghanistan advice

Photo: Carolone Brehman/Pool/AFP via Getty Images

Top military leaders confirmed in a Senate hearing Tuesday they recommended earlier this year that the U.S. keep 2,500 troops in Afghanistan, and that they believed withdrawing those forces would lead to the collapse of the Afghan military.

Why it matters: Biden denied last month that his top military advisers wanted troops to remain in Afghanistan, telling ABC's George Stephanopoulos: "No one said that to me that I can recall."

Capital Gazette gunman sentenced to over 5 life sentences

Police tape blocking access from a street leading to the building complex where the Capital Gazette is located on June 29, 2018, in Annapolis, Md. Photo: Mandel Ngan/AFP via Getty Images

A judge on Tuesday sentenced the gunman who murdered five employees at the Capital Gazette newspaper in 2018 to more than five life sentences without the possibility of parole.

Driving the news: Anne Arundel County Judge Michael Wachs ordered the sentence for Jarrod Ramos. The judge said that Ramos showed no regrets for the shooting — which is considered one of the worst attacks on journalism in U.S. history — and told a state psychiatrist he would continue killing if released, AP reports.