The pending Supreme Court case on the fate of the Affordable Care Act could give the Biden administration its first opportunity to chart a new course in front of the justices.
The health care case, argued a week after the election in November, is one of several matters, along with immigration and a separate case on Medicaid work requirements, where the new administration could take a different position from the Trump administration at the high court.
While a shift would be in line with President Joe Biden’s political preferences, it could prompt consternation at the court. Justices and former officials in Democratic and Republican administrations routinely caution that new administrations should generally be reluctant to change positions before the court.
Justice Elena Kagan, who as solicitor general was the top Supreme Court lawyer for former President Barack Obama before he appointed her to the court, said in a 2018 forum that the bar should be high.
I think changing positions is a really big deal that people should hesitate a long time over, which is not to say that it never happens, Kagan said at the time. Indeed, Trump’s Justice Department made a switch four times in the first full high court term of the administration.
Still, the health care case is a good candidate for when a rare change of position may be warranted, said Paul Clement, who was solicitor general under President George W. Bush.
The Justice Department defends federal laws at the Supreme Court whenever reasonable arguments can be made, Clement said at an online Georgetown University forum.
The Trump administration called on the justices to strike down the entire Obama-era law under which some 23 million people get health insurance and millions more with preexisting health conditions are protected from discrimination.
Biden was vice president when the law was enacted, famously calling it a big (expletive) deal the day Obama signed it into law in 2010.
As president, Biden has called for strengthening the law, and he already has reopened sign-ups for people who might have lost their jobs and the health insurance that goes with them because of the coronavirus pandemic.
In the health care case, the court could rule that the now-toothless requirement that people obtain insurance or pay a penalty is unconstitutional and leave the rest of the law alone. That outcome, rather than taking down the whole law, seemed a likely one based on the justices’ questions and comments in November.
The Justice Department could simply file a new legal brief saying that its views have changed, former acting Solicitor General Neal Katyal, also an Obama administration veteran, said at the same Georgetown event. A second court hearing is unlikely.
Clement agreed. I think the justices would welcome it, he said. I also think it’s an incredibly strong position.
But Clement cautioned that the new acting solicitor general, Elizabeth Prelogar, will have to pick her spots before the justices, three of whom were appointed by President Donald Trump. The Biden administration is going to have to realize they’re making arguments to a reasonably conservative court, he said.