Under new management: DOJ withdraws support of ACA challenge

The Biden administration’s Justice Department on Wednesday switched positions in a major case at the U.S. Supreme Court, informing the justices that the government would not support the Trump-era argument that the Affordable Care Act was unconstitutional and should be struck down.

In a letter to the clerk of the court, Deputy Solicitor General Edwin Kneedler wrote: “Following the change in administration, the Department of Justice has reconsidered the government’s position in these cases.”

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The letter rejected the position of the Trump administration in the case California v. Texas, where a group of Republican states argued the entire health care law must fall based on the alleged unconstitutionality of the individual mandate.

The Trump Justice Department, under the leadership of then-Solicitor General Noel Francisco and backing the Republican states, urged the Supreme Court to strike down the ACA. The Trump administration was reportedly divided over making such an argument.

Switching positions at the Supreme Court is rare. Leading appellate lawyers had predicted the Biden administration would abandon the Trump DOJ arguments in the health care case.

In Wednesday’s letter, Kneedler urged the justices to uphold the ACA even if the court concluded the individual mandate was an unlawful piece of the law. Several justices in recent cases have advanced strong views supporting “severability,” in which the unlawful part of a law is removed and the full law remains in place.

Kirkland & Ellis partner Paul Clement, speaking recently on a panel, said it has “always been understood” as a corollary of the Justice Department’s long-held position to defend statutes whenever reasonable arguments can be made that “even if you think part of the statute is unconstitutional, it would be in the long-term traditions of the office to have as little of the statute as possible fall as unconstitutional.”

Kneedler signed the letter to the court because the acting U.S. solicitor general, Elizabeth Prelogar, formerly a partner at Cooley, was recused. Prelogar had submitted an amicus brief in the case while in private practice.

Kneedler’s full letter is posted below:

Read more:

• SCOTUS and California v. Texas: What’s next?
• AHIP president: Supreme Court will save most of ACA
• ‘The entire ACA thus must fall,’ Trump’s DOJ tells Supreme Court

Mike Scarcella contributed reporting from Washington.