The Biden administration has notified the U.S. Supreme Court that the federal government no longer considers the Affordable Care Act to be unconstitutional. The reversal of the government’s legal position follows Nov. 10 oral argument in California v. Texas, during which the Trump administration told the justices that the landmark healthcare law was unconstitutional and must be struck down in its entirety.
“Following the change in Administration, the Department of Justice has reconsidered the government’s position in these cases,” said Deputy Solicitor General Edwin Kneedler in a letter to the Supreme Court’s clerk filed Wednesday. “The purpose of this letter is to notify the Court that the United States no longer adheres to the conclusions in the previously filed brief of the federal respondents.”
The letter also said that the Biden administration believes that the provision of the ACA under issue, which mandates payment of a tax penalty that Congress later zeroed out in later legislation, is separable from the rest of the law.
“The severability inquiry typically requires asking whether Congress would have wanted the rest of a statute to stand, had it known that one or more particular provisions of the statute would be held invalid,” Kneedler wrote. And the “normal rule is that partial, rather than facial, invalidation is the required course.”
It is not unusual for a new administration, especially if it is led by a president of a different party, to change the legal positions argued in litigation involving the government. It is less common for that to occur in a Supreme Court case.
The case is California v. Texas, No. 19-840.
