There is a risk for the Biden Administration to withdraw the Trump Administration’s Obamacare Brief
CNN and other outlets have speculated that the Biden Administration may withdraw the Trump Administration’s brief in California v. Texas, the Obamacare challenge. Elizabeth Prelogar, the Acting Solicitor General, is probably recused from the ACA Case. She filed an amicus brief on behalf of 47 members of Congress. As a result, Deputy Solicitor General Edwin Kneedler, the most senior person in OSG, would have to decide whether to withdraw the Trump Administration’s brief.
Will Baude and others have discussed the propriety of withdrawing the brief. There is another strategic consideration at play. If the Biden administration withdraws the brief, it will have to file a new brief in its place. And, presumably, that brief would argue that (1) the Plaintiffs lack standing, (2) the challenged provisions are constitutional, and (3) if the Court decides otherwise, it should use a scalpel to sever the unconstitutional provisions, leaving the rest of the act intact.
But there may be some reason to think OSG would leave the current brief in
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