Earlier this week the U.S. Department of Justice (DOJ) sent a letter to the Supreme Court amending the position the federal government was taking in California v. Texas, the challenge to the Affordable Care Act popularly known as Obamacare (ACA or Act) currently pending before the Justices. (Oral argument in the case was heard right after the election, on November 10, 2020.) Although such changes in position are unusual, this one was warranted.
The Solicitor General (SG) in President Donald Trump’s administration had taken the position that Congress’s removal in 2017 of tax liability for persons who did not procure health insurance rendered unconstitutional a part of the ACA that was left intact—§5000A, which provides that people “shall” maintain insurance coverage—and also that this unconstitutional part (§5000A) could not be severed from the rest of the Act, such that all of Obamacare would be invalid. The Solicitor General’s office under the Joseph Biden administration is backing off from—indeed reversing course on—both of those points. As the letter from this Wednesday states, “[a]fter reconsideration of the issue, it is now the position of the United States that the amended section 5000A is constitutional” and “it is also now the position of the United States that, if [the] Court nevertheless concludes that Section 5000A is unconstitutional, that provision is severable from the remainder of the ACA.”
This change of course raises several questions worth considering. First is whether it is ever wise for the SG to revisit its stance in a pending case after a new president is elected. On the one hand, if the arrival of a new presidential administration means that the United States would routinely change its positions from those already taken in briefs filed in the federal courts, the SG’s office might well lose the reputation (and the credibility that comes from that reputation) it has enjoyed at the Court for being a straight-shooting law office that operates above partisan politics. That is why, for example, when Neal Katyal came in as Acting Solicitor General when President Barack Obama succeeded President George W. Bush, he decided (after carefully reviewing the Bush DOJ filings at the Court in pending cases) that he didn’t want to change any of them.
But some issues—and Obamacare may be one of them—might be so politically important and visible that a new administration feels it has to put its (DOJ’s) money where its (campaign) mouth has been. So maybe this week’s letter to the Court was sent in part to reinforce and amplify the Biden’s administration’s important political commitment to expanding healthcare coverage.
But perhaps politics was not at work at all. Perhaps the switch in positions reflected the singular legal weakness of the Trump administration’s arguments in the California v Texas case. As I and two colleagues (Jason Mazzone and Evan Caminker) explained in a series of columns (the last of which—that in turn links back to earlier parts—is here), the challenge to Obamacare in California v. Texas is, as cases that make it to the Supreme Court go, unusually weak and deserves to fail for many independent reasons. Indeed, even a strongly conservative Court seemed to signal at oral argument a few months ago that a large majority of Justices would vote to uphold the Act and reject the challenge. President Trump had a very different attitude towards the DOJ—and legal and constitutional norms more generally—than did his predecessors in the White House, and it is thus not surprising that his successor might have to take a different approach to or assessment of inter-administration consistency in legal filings than Obama did after Bush.
Indeed, while fluctuating positions by the United States in cases pending at the Court can reinforce perceptions of partisanship overriding legal craft, sticking with very weak—even frivolous—positions that have already been asserted can itself undermine credibility. That is why the Solicitor General sometimes “confesses error” in the Court, that is, admits that the lower court erred (even if in the direction of the United States) such that the Court should remand the case to fix the mistake. This kind of “statement against interest,” so to speak, is designed to bolster the SG’s reputation as an entity that will never try to sell the Court a legal position that isn’t at least arguably correct, thereby causing the Justices to take the SG’s filings seriously. The reversal in course in California v. Texas could be understood in similar terms—it was the Trump administration’s implausible legal arguments that undermined the legal credibility of the SG’s office; by reversing course the new administration is not engaging in crass partisan lawyering but rather trying to undo it.
It is for that reason—the exceptional implausibility, if not preposterousness, of the SG’s earlier filings—that I believe this week’s letter was a good move. In this regard, I note that there was one issue on which the Trump DOJ had weighed in on which this week’s letter did not change course—the “standing” of the challengers to bring the case in the first place. As my co-authors and I explored in one of the essays in our series, the SG’s standing argument in support of standing was newfangled and unconvincing (or at the very least question-begging) on its own terms. But in my view (and I don’t necessarily speak for my co-authors here), the position concerning standing asserted by the SG was less implausible (or at least less clearly foreclosed by settled legal principles) than the Trump administration’s positions on the merits of section 5000A’s constitutionality or on severability. So in weighing the need to clean up a past SG’s poor filings, on the one hand, and the desire not to flip-flop based on an election result, on the other, I think the Biden folks may have gotten it just right.
My only suggestion concerning the letter might have been to provide more explanation for the change in position. I’m not saying the SG’s office should have filed whole new briefs on the merits and severability (and there may not have been time to do so since the Court could issue an opinion any time now), but if the point was to explain the weakness of the earlier position—and thus justify the decision to set the briefing record straight—then more doctrinal detail may have been helpful. Indeed, without “piling on” (the way our series of columns might have been understood to do) or being overly harsh in criticizing the past SG’s filings, more explanation could have demonstrated why this instance was (the unusual) one that justified a change in position, so as to deflect the perception that it’s just about sending a message of support for Obamacare.