Changing Litigating Positions at the Solicitor General’s Office
NPR has this story (quoting Jonathan Adler among others) about the choices faced by President Biden’s solicitor general’s office. When should they withdraw briefs filed by the previous administration and replace them with a new position?
As Katyal observes, the Bush administration had largely followed the tradition of defending laws enacted by Congress, even laws that Republicans generally opposed. With rare exceptions, that is one of the traditional jobs of the SG. But the Trump administration did not adhere to that norm.
Perhaps the most glaring example is a case currently before the court in which the Trump administration joined a challenge to the Affordable Care Act. Although the Supreme Court had twice before upheld the law, the Trump administration asked the court to strike it down in its entirely.
The court has already heard arguments in the case, so the question for the Biden administration is this: Should it weigh in at this late date or let sleeping dogs lie?
Because the Justice Department’s position in a variety of ways violated so many legal norms, “the case for informing the court that the Justice Department no longer stands behind those briefs, I think is stronger than i
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