Breaking: Deputy Solicitor General Kneedler Withdraws SG’s Brief in ACA Case
Last week, I wrote about the possibility of the Biden Administration withdrawing the Trump Administration’s brief in California v. Texas. Today, Deputy Solicitor General Kneedler filed a letter with the Supreme Court taking that action. (As I suspected, Acting SG Prelogar is recused, as she filed an amicus brief in this case).
First, the letter characterized the SG’s former position.
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.
This statement is accurate. The SG never argued that the entire ACA must fall. No matter how many times that statement is printed, it is not accurate.
Second, the letter states that the position changed after the change in administrations. There is no reference to “upon further reflection.”
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.
Third, the letter adopts the “choice” reading of NFIB:
After reconsideration of the issue, it is now the position of the United States that the amended Section 5000A is constitutional. In National Federation o
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