Biden Administration Reverses DOJ Position in Texas ACA Case
There was little question that the Biden Administration would be more eager to defend the Affordable Care Act in court than was the Trump Administration. As had been widely reported, the federal government’s legal position in California v. Texas was dictated by the White House, not Justice Department lawyers. Now, however, the federal government reversed course.
Earlier today, Deputy Solicitor General Edwin Kneedler sent a letter informing the Supreme Court that the Department of Justice has reconsidered its position on the constitutionality of the mandate-sans-penalty and the severability of the mandate from the remainder of the Act.
The letter reads in relevant part:
On November 10, 2020, this Court heard oral argument in these consolidated cases concerning whether, as a result of the elimination in 2017 of the monetary payment under 26 U.S.C. 5000A, which was enacted as part of the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119, that provision is no longer a valid exercise of Congress’s legislative authority; and whether, if that provision is now invalid, the remainder of the ACA’s provisions are inseverable from it.
1. The federal respondents had previously filed a brief contending that Section 5000A(a) is unconstitutional and is inseverable from the remainder of the ACA, although the scope of relief entered should be limited to the provisions shown to injure the plaintiffs. The government advanced the same positions at oral argument.
Following the change in Administration, the Department of Justice has reconsidered the government’s position in these cases. 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.
2. After reconsideration of the issue, it is now the position of the United States that the amended Section 5000A is constitutional. In National Federation of Independent Business v. Sebelius (NFIB), this Court held that the payment provision in Section 5000A could be sustained as a valid exercise of Congress’s constitutional power because it offered a choice between maintaining health insurance and making a tax payment. 567 U.S. 519, 570, 574 & n.11 (2012). In so ruling, the Court noted that no negative legal consequences attached to not buying health insurance beyond requiring a payment to the IRS, and that the government’s position in the case confirmed that if someone chooses to pay rather than obtain health insurance, that person has fully complied with the law. Id. at 568. Congress in 2017 amended Section 5000A(c) by reducing to zero (effective in 2019) the shared responsibility payment assessed under Section 5000A(b) as a lawful alternative to purchasing insurance under Section 5000A(a), see Tax Cuts and Jobs Act, Pub. L. No. 115-97, Tit. I, § 11081, 131 Stat. 2092, but it did not amend Section 5000A(a) or (b). In the view of the United States, Con
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