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DOJ attorney resigns after Justice stops defending key Obamacare provisions

Updated 8:40 PM ET, Tue June 12, 2018

(CNN) - One of the Department of Justice attorneys who withdrew from an ongoing case over the Affordable Care Act just before the government said it would no longer defend the law has resigned.

Joel McElvain is one of three career Justice Department attorneys who withdrew from the lawsuit brought by Texas and a coalition of other Republican-led states challenging the constitutionality of the Affordable Care Act. He has tendered his resignation and his last day will be July 6, according to a department spokesperson.

The two other employees who withdrew from the case -- Rebecca Kopplin and Eric Beckenhauer -- have had no change in their employment status, the spokesperson said.

The Washington Post was the first to report McElvain's resignation, which is said to come after "internal frustration generated by the decision, according to people familiar with the matter."

McElvain did not immediately respond to a request for comment.

The three attorneys withdrew from the case just before Attorney General Jeff Sessions announced the Justice Department would no longer defend the Affordable Care Act, saying two important parts of the law should be invalidated and the individual mandate is unconstitutional.

Losing the two provisions -- guaranteed issue and the community rating provision -- would gut protections for those with pre-existing conditions.

Guaranteed issue requires insurers to offer coverage to everyone regardless of medical history. Before the ACA, insurers often rejected applicants who were ill or had pre-existing conditions, or offered them only limited coverage. Under the community rating provision, insurers were not allowed to set premiums based on a person's health history.

The Justice Department spokesperson said last Thursday that the three attorneys withdrawing from the case was not unusual.

"It's pretty simple: new legal position, new team. It's not uncommon to make this kind of switch," the spokesperson said.

However, Marty Lederman, who worked in the Justice Department during President Barack Obama's administration, said the move was unprecedented.

"Perhaps such a mass withdrawal of DOJ attorneys from a case has happened before," he wrote Friday in a post for Balkinization, a law blog started by Yale University law professor Jack Balkin. "If so, however, I am not aware of it."

It's not the attorneys withdrawing from the case that is unusual but the fact that so many did so at one time, according to Lederman, who is now an associate professor of law at the Georgetown University Law Center.

He said attorneys from the Federal Programs Branch of the Civil Division often make "very aggressive and unlikely-to-prevail arguments in defense of federal programs and statutes" and that the division is not "timid." He said lawyers can request to be reassigned from a particular case when they have moral or other "serious qualms" about the government's actions. But they "rarely" seek the court's permission to withdraw.

"For three such respected DOJ attorneys to do so simultaneously—just hours before a major filing, and without replacement by any other career lawyers other than a rookie—is simply flabbergasting.


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