Expectations are high for President Biden to reverse course on the Trump administration’s Supreme Court case challenging the Affordable Care Act.
The Trump Justice Department, in arguments made at the court a week after the election, claimed that Obamacare is unconstitutional because its individual mandate, a tax which propped up the law’s constitutionality in past cases, was wiped out by Congress in 2017. Most justices looked skeptically on those arguments.
Biden at the time pledged to “protect and expand” what is widely seen as former President Barack Obama’s signature presidential achievement.
And one of the first ways that Biden could do that is by instructing the solicitor general’s office to stop defending his predecessor’s position on the Affordable Care Act. The move would be unusual since the Justice Department typically seeks continuity in the transition between administrations’ legal positions. The tradition is a long-standing one, with the understanding that the solicitor general’s office represents the interests of the country distinct from any particular administration’s desires.
Biden’s acting Solicitor General Elizabeth Prelogar did not respond to request for comment.
But in the past week, Biden has already dropped several high-profile Trump legal fights. His administration on Wednesday convinced the Supreme Court to delist two Trump immigration battles: a dispute over funding for the Mexican border wall and a challenge to former President Donald Trump’s “remain in Mexico” policy. That same day, the Biden Justice Department dropped a lower-court Trump case accusing Yale University of discriminating against white and Asian students in its admissions process.
Biden has also signed a number of executive orders running up against Trump attempts to strip Obamacare’s effects. The president was a vocal supporter of the ACA while serving in the Obama administration, remarking upon its passage that it was a “big f—ing deal.”
It would make sense for Biden to ditch the Trump position on the Affordable Care Act as well, said Paul Clement, who served as solicitor general during former President George W. Bush’s tenure.
“It seems like the ACA case is a pretty good target,” Clement said during a recent Georgetown University event with Obama legal adviser Neal Katyal. Clement added that the Biden administration, if it were to switch sides in the case, has a good chance of landing on the winning one.
Both Clement and Katyal, who faced off on opposite sides of the Obamacare debate when the law was first enacted, agreed that the way in which the Trump administration attacked the act deviated from the United States’s long-term position on the issue.
And for Biden to cease defending Trump’s position would not actually be a deviation from norms but rather a return to them, Katyal argued.
“You don’t want to change positions from the past administration,” Katyal said. “But if you’ve got some outlier position, you’re almost really compelled to as an institutionalist.”
In the pass from the Bush to the Obama administration, the solicitor general’s office did not change a single position in an open case, with the Obama office notably maintaining a defense of “Don’t Ask, Don’t Tell,” even as the president vocally opposed it. Justice Elena Kagan was solicitor general at the time.
Kagan in 2018 told a legal forum that the court does not look kindly on Justice Departments that switch too many positions from previous administrations.
“I think changing positions is a really big deal that people should hesitate a long time over,” she said.
Kagan’s comments came after the Trump Justice Department broke norms by switching positions on several Obama-era cases. That issue came up several times during court arguments. Justice Sonia Sotomayor in 2018 taunted then-Solicitor General Noel Francisco for reversing course on so many Obama-era cases.
“By the way, how many times this term already have you flipped positions from prior administrations?” she said while Francisco defended the Trump administration in a case involving a union dispute.
Obama Solicitor General Donald Verrilli faced similar opprobrium from Justice Antonin Scalia in 2012, when he defended a case on which the Obama administration switched sides.
“Why should we listen to you rather than the solicitors general who took the opposite position?” Scalia said.
