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.

NEXT: House Impeachment Managers and Trump's Defense Lawyers File their Impeachment Trial Briefs

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  1. Well they should withdraw the brief regardless of consequences because it is bad faith nonsense that is an embarrassment to the legal profession. This case is only at SCOTUS because of some political hacks in the lower courts making political points in judicial opinions. I mean think of how many bad faith posts Josh made about how the Trump admin wasn’t trying to get rid of the ACA because of some weasel words about the remedy they’re seeking being limited to portions of the ACA that harm the plaintiffs. The obvious result of a judgement however is that the federal government would no longer enforce an unconstitutional statute and millions would lose their insurance.

    Second, they probably want the standing argument to succeed because the plaintiffs standing argument is legally ridiculous (and gravely immoral): a fake injury based on the feelings entitles them to ask courts to take away health insurance for millions of people. That’s legally wrong and morally offensive. No wonder Josh supports it. But from a purely strategic sense, the Biden administration probably doesn’t want to open up standing to challenge millions of federal programs based.

    1. On fake injuries

    2. Hear hear!

  2. “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. ”

    Hold up, what? Congress passed a law explicitly making the individual mandate unconstitutional! That is the standing issue here! The standing problem is exactly the same. The argument against standing here is exactly the same … I’m very confused.

    1. Sorry, not unconstitutional, unenforceable is what I meant

    2. He’s suggesting that if they enforce a different provision, say the employer mandate, that that person would have a distinct injury and claim that the whole ACA is unconstitutional because the mandate isn’t severable per circuit precedent. Here the two standing issues are State standing where the law is a mess and two individuals claiming an injury based on the mandate itself.

      1. I get what he is saying though he skipping over whether that precedent would be binding. If SCOTUS rules there was no standing then I think all opinions are vacated, so it would be as if it doesn’t exist.

  3. Where Judge Roberts is there any delegated power to the Federal Government to force people to buy insurance for existing? This is a classic example of why the SC should NOT be the final decision point for federal law.

    1. You lost that argument centuries ago.

    2. According to Justice Roberts, the same authority that allows the federal government to tax you for existing.

  4. If the Supreme Court were to hold that California v. Texas had to be dismissed because none of the plaintiffs had standing, it would be holding that because neither the individual plaintiffs nor the State plaintiffs had standing, the merits of the lawsuit shouldn’t have been decided. Therefore, neither Judge O’Connor’s opinion nor the Fifth Circuit’s opinion (which certainly didn’t hold that anything in the ACA besides the mandate was inseverable; that’s why it remanded) would qualify as Circuit precedent.

    1. Came here to make this exact point. Are you and I missing something, or is Blackman?

      1. I don’t even have to know the context to answer that one!

      2. I dont think the two of you are the ones missing something. Amd I see uou beat me to it.

  5. What an odd argument. Why would the government not simply limit its argument to the merits if that’s their plan?

  6. Defendents in enforcement actions challenge the constitutionality of the statutes being enforced against them all the time. Big deal. It hardly seems a reasonable argument for not challenging standing in a case where there obviously isn’t any.

    What makes this different from any other case? The SG lawyers can ALWAYS reduce their future workload by simply not defending statutes against challenges. The more laws get struck down now, the fewer future challenges there will be, and the less future work they will have to do. The consideration exists every time any law is challenged. This one is no different.

  7. Also, Professor Blackman appears to have made a really big blooper. If the Supreme Court finds there is no standing, the entire case gets dismissed, all lower court opinions get vacated, and circuit precedent regarding the merits of this case dissappears, leaving any future plaintiff to argue the merits from scratch.

    1. Yes, everybody moves back to square one. I’m not getting why you think Blackman missed this when he wrote

      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.

      1. Because he also wrote this:

        “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.”

        He obviously thinks the Fifth Circuit’s opinion will remain “circuit precedent.”

        1. Thanks, failing to read carefully I assumed he meant there was other relevant circuit precedent detailed in his other writings.

  8. Maybe, but they won’t care.

    The Biden administration (as opposed to addle-brained Biden himself, who we all know isn’t actually making any substantive decisions) is controlled by far-leftists. As such, they value few things more than virtue signaling to the Left. They certainly value it more than professionalism.

    Another headline of “Biden reverses another Trump policy” is priceless to the Biden administration by momentarily placating the rabid. lunatic base that drives the Democrat party nowadays.

    1. 9/11 never happened? Colombine was staged?
      To find anyone in Congress who spouts things like this, you have to look to the Republican party.

      For someone who lives in a glass house, you are sure throwing s lot of stones.

      1. It’s all cyclical, Dennis Kucinich retired, so the GOP had to step up the crazy plate. In a few more years it will be the Dems’ turn again

    2. far leftists?

      Good god you guys are in for a real treat if you think the Biden admin is “far left.”

      Maybe snap back to reality at some point.

    3. I don’t think Ed Kneedler (plausibly identified by Professor Blackman as the likely decision-maker here) is a far-leftist.

  9. Whatever risk comes from writing a new brief is less than the risk that comes from the government endorsing the Supreme Court striking down a law they would prefer upheld.

    1. Advocates are known to blow pure smoke to try to induce the other side to do something that obviously isn’t in their rational interest to do. Normally, law professors don’t do things like that because they are concerned about their general reputation, not just winning the case at hand, and so tend to be limited to arguments that make some coherent sense to outside parties.

      But Profesdor Blackman doesn’t seem to be so limited.

      Obviously the administration would be better off winning any way it can, including having the case dismissed on standing and fighting another day with another plaintiff, than losing now. And if it wants that outcome on one of the Democrats’ most important signature priorities, it needs to change its brief.

      I agree Professor Blackman’s argument is pure smoke and makes no coherent sense at all from the point of view of the administration’s actual intetests.

      1. Not fighting standing in this case also signals that the federal government is okay with developing a standing doctrine that would let lots of federal programs, beyond the ACA, be challenged. They probably really want to win on standing here.

  10. Why doesn’t (the Dem controlled Congress and WH) simply reinstate the penalty (i.e. change it from the current $0 penalty).

    Wouldn’t that make this case moot since this case is about severability which would no longer be needed?

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