There is a risk for the Biden Administration to withdraw the Trump Administration's Obamacare Brief

If the case is dismissed on standing grounds, a future litigant in the Fifth Circuit could challenge the ACA as a defense to federal enforcement

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 place: a decision on standing ground is risky. I flagged this concern shortly after oral arguments:

There are two general postures in which a statute can be challenged. The traditional posture is that a plaintiff seeks a declaration that a law is unconstitutional. Here, the Plaintiff must assert that the statute causes an Article III injury. Generally, the government must take some sort of enforcement action to cause that injury. There is a second, less common posture: the government tries to enforce a statute against a person, and she raises as a defense that statute is unconstitutional. For example, in Bond v. United States, the defendant argued that his prosecution was invalid because a chemical weapons treaty violated the principles of federalism. In this case, Article III standing was obvious because the government sought to prosecute Bond with the statute.  I'll call the first path the offensive posture and the second path the defensive posture.

In California v. Texas, even if the Court holds that the plaintiffs lack standing to challenge the ACA in an offensive posture, a defendant in another case could challenge the ACA in the defensive posture. . . .

If the Court dismisses the case for lack of standing, the controversy would linger. During that time, the fate of the ACA would remain in doubt. Dismissal does not provide an easy way out of this dispute.

OSG would prefer to win on the merits, or win on severability. But a win on standing would be short-lived. In the future, the federal government will take some enforcement action in Texas against a person based on the ACA. And that defendant, relying on circuit precedent, could argue that the entire ACA is unconstitutional. In this case, there would be no doubts about standing. The Biden Administration does not want the validity of the ACA floating in doubt for the next three years. In 2010, DOJ argued that the Tax Anti-Injunction Act did not bar the original ACA challenge. The Obama Administration wanted order to settle the validity of the law before the election.

Ultimately, Kneedler may decide to leave things as they are. Or, the Court could decide the case tomorrow, thus relieving the SG of the need to take any action. A Wednesday decision date in the middle of the February recess is unusual. I checked SCOTUSBlog's calendar, and could not find any Wednesday decision days in February over the past five years. Stay tuned.