Biden Justice Dept. Asks Supreme Court to Save Obamacare

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February 10, 2021

The Biden Justice Department on Wednesday asked the Supreme Court to reject a red-state legal attack on the Affordable Care Act, breaking with the department's Trump-appointed predecessors who argued the entire law is unconstitutional. 

The High Court heard arguments in the latest Obamacare challenge on Nov. 10. A decision is expected by summer. 

Changing sides in a Supreme Court case is a controversial practice. But Wednesday's move was expected since the government's prior position created a conflict for President Joe Biden, who has promised to protect and expand the Affordable Care Act. The Trump Justice Department's position was itself surprising since the department defends the constitutionality of federal laws as a matter of course. Wednesday's letter forthrightly cites "the change in administration" as the reason for the change. 

A coalition of red states brought a fresh challenge to Obamacare after the 2017 tax reform law zeroed out the financial penalty for failing to buy health insurance. The states argue that the mandate cannot be sustained as a tax if it isn't raising any money for the government. They add that the mandate is integral to the law’s design, so the entire law must be struck down if the mandate is found unconstitutional. 

The Trump administration endorsed those arguments before the justices and declined to defend Obamacare in court. Wednesday's letter retreats from that position, arguing instead that the zeroed-out mandate "preserved the choice between lawful options," albeit without consequences for non-compliance. 

The letter adds that if the Court deems the mandate unconstitutional, it should strike that particular provision and salvage the rest of the law—something the Court seemed inclined to do during oral arguments in November.

By normal Court practice, an initial vote in the case would have followed a few days after the Nov. 10 argument. The majority opinion has likely been assigned for several months. 

The Justice Department did not call for further hearings or additional legal filings because "oral argument was held and these cases were submitted three months ago, and because other parties have fully briefed both sides of the questions presented."

Deputy solicitor general Edwin Kneedler, a career government lawyer, submitted the letter because acting solicitor general Elizabeth Prelogar is recused. Prelogar filed a brief in the case on behalf of Democratic lawmakers as an attorney in private practice.

Wednesday's cases are No. 19-840 California v. Texas and No. 19-1019 Texas v. California.