WASHINGTON (AP) – The pending case in the Supreme Court on the fate of the Affordable Care Act could give Biden’s administration the first opportunity to chart a new course for the judges.
The concern, arguing a week after the November election, is one of many cases, along with immigration and a separate case over Medicaid work requirements, where the new administration could take a different position from the Trump administration on the Supreme Court.
While a shift would be in line with President Joe Biden’s political leanings, it could cause consternation in court. Judges and former officials in Democratic and Republican governments routinely warn that new governments should generally be reluctant to change positions in court.
Judge Elena Kagan, who as Attorney General was the Supreme Court’s highest attorney for President Barack Obama before nominating her to court, said in a 2018 forum that the bar should be high.
“I think switching positions is a really big problem that people have to hesitate about for a long time, which is not to say it never happens,” Kagan said at the time. Indeed, Trump’s Justice Department has made four moves in the administration’s first full tenure.
Still, the concern is a good candidate for when a rare change of position may be warranted, said Paul Clement, who was attorney general under President George W. Bush.
The Justice Department defends federal laws in the Supreme Court “whenever reasonable arguments can be made,” Clement said at a Georgetown University online forum.
The Trump administration called on the judges to drop the entire Obama-era law including about 23 million people are covered by health insurance and millions more with pre-existing health problems are protected from discrimination.
Biden was vice president when the law went into effect, calling it a “big (expletive) deal” the day Obama signed it in 2010.
As president, Biden has called for the law to be tightened and has already reopened filings for people who may have lost their jobs and the health insurance that came with it due to the coronavirus pandemic.
In the concern case, the court could rule that the now toothless requirement that people get insurance or pay a fine is unconstitutional and leave the rest of the law alone. That result, rather than bringing down the entire bill, seemed likely based on the judges’ questions and comments in November.
The Justice Department could simply file a new legal letter stating that its views have changed, former acting Attorney General Neal Katyal, also a veteran of the Obama administration, said at the same event in Georgetown. A second hearing is unlikely.
Clement agreed. “I think the judges would welcome it,” he said. “I also think it’s an incredibly strong position.”
But Clement warned that the new acting solicitor general, Elizabeth Prelogar, will have to take her place before the judges, three of whom have been appointed by President Donald Trump. “The Biden administration will have to realize that they are arguing before a fairly conservative court,” he said.
Orders issued by Biden in the first week of his presidency could also affect two cases scheduled for discussion next month over controversial Trump administration policies involving immigrants.
In one instance, Trump was not satisfied with the money that Congress had allocated to build a wall along the Mexican border. Trump declared a national emergency, identifying nearly $ 7 billion earmarked for other purposes to build sections of the wall instead.
The case before the Supreme Court is $ 2.5 billion in Defense Department funds. Lower courts have ruled that what Trump did is likely illegal, but the Supreme Court allowed work on the wall to continue while the case went through the legal system.
Much of the money has already been spent, and Biden withdrew the emergency on his first day of work. The Justice Department could tell the court that there is nothing left to decide.
The same could be true of the legal challenge to Trump policies forcing asylum seekers to wait in Mexico for hearings in the US. Biden has suspended the policy for newcomers.
“It looks like the matter may not be negotiable, but we are waiting to hear from the Acting Solicitor General what they intend to do. Obviously, it’s a welcome change in policy, ”said Judy Rabinovitz, American Civil Liberties Union attorney who challenges the policy.
A dispute over waivers the Trump administration has granted states to impose job requirements on people receiving their health care through the Medicaid program could also be affected.
Biden on Thursday ordered the Health and Human Services Department to review the exemptions, but it is unclear how quickly the administration could act to reverse them and whether changes could derail the Supreme Court case.
The exemptions were withdrawn in lower courts and the states appealed. In early December, the judges knew there would be a new government by the time they heard the case, but they decided to tackle it anyway.