Bloomberg Law
Feb. 10, 2021, 9:08 PM

Biden DOJ Tells Top Court U.S. Flips Trump Stance on Obamacare

Greg Stohr
Greg Stohr
Bloomberg News

President Joe Biden’s administration told the U.S. Supreme Court the Affordable Care Act is constitutional, filing an unusual letter that flips the government’s position three months after the justices heard arguments on the law.

The Trump administration had argued against the health-care law, also known as Obamacare, when the justices heard the case Nov. 10.

Opponents are trying to invalidate the entire law by pointing to a Republican-backed 2017 tax change that eliminated a penalty for not having insurance. The penalty was central to the 2012 Supreme Court decision that upheld the so-called individual mandate to have insurance as a legitimate use of Congress’ constitutional taxing power.

The Trump administration argued that the individual mandate isn’t constitutional without the tax penalty. But in a two-page letter Wednesday, Deputy Solicitor General Edwin Kneedler told the court the new administration “no longer adheres” to that stance.

“Rather than imposing a new burden on covered individuals, the 2017 amendment preserved the choice between lawful options and simply eliminated any financial or negative legal consequence from choosing not to enroll in health coverage,” Kneedler wrote.

The letter says that, even if the court decides the insurance mandate is unconstitutional, the justices should “sever” that provision so that the rest of the law survives.

Vote Taken

The justices in all likelihood have already decided how they will rule in the case. The justices typically take an initial vote within days of the argument, and one of them begins drafting a majority opinion soon thereafter.

The Nov. 10 argument suggested the court was inclined to uphold the bulk of the law, if not the entire thing. Two of the court’s conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, indicated they wouldn’t strike down the entire law even if the individual mandate were invalidated. The court is scheduled to rule by late June.

The Trump administration’s position, particularly with regard to severing the individual mandate, marked a departure from the solicitor general’s usual practice of defending federal laws.

Kneedler, a career Justice Department lawyer, said he was signing the letter because acting Solicitor General Elizabeth Prelogar is recused. Before being named to her position, Prelogar filed a brief in the case as a private lawyer.

The case is California v. Texas, 19-840.

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To contact the editors responsible for this story:
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Elizabeth Wasserman

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