The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Affordable Care Act

Biden Administration Reverses DOJ Position in Texas ACA Case

The Department of Justice is now willing to defend the constitutionality of the Affordable Care Act and the severability of the penalty-less mandate.


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, Congress's decision to reduce the payment amount to zero therefore did not convert Section 5000A from a provision affording a constitutional choice into an unconstitutional mandate to maintain insurance. Rather than imposing a new burden on covered individuals, the 2017 amendment preserved the choice between lawful options and simply eliminated any financial or negative legal consequence from choosing not to enroll in health coverage.

It is also now the position of the United States that, if this Court nevertheless concludes that Section 5000A(a) is unconstitutional, that provision is severable from the remainder of the ACA. The severability inquiry typically requires asking "whether Congress would have wanted the rest of [a statute] to stand, had it known that" one or more particular provisions of the statute would be held invalid. NFIB, 567 U.S. at 587 (opinion of Roberts, C.J.). And the "normal rule is that partial, rather than facial, invalidation is the required course." Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (citation and internal quotation marks omitted). In the view of the United States, that presumption of severability cannot be overcome here, particularly as the 2017 Congress that reduced to zero the amount of the shared responsibility payment option under Section 5000A simultaneously left in place the remainder of the ACA.

3. Because oral argument was held and these cases were submitted three months ago, and because other parties have fully briefed both sides of the questions presented, the United States is not requesting supplemental briefing.

Of note, the brief does not alter the Justice Department's position on whether the plaintiffs have standing to bring their claims. Also of note, the letter was signed by Kneedler instead of Acting Solicitor General Elizabeth Prelogar, who is no doubt recused because she submitted an amicus brief in this case on behalf of Democratic Senators. This is also interesting because DSG Kneedler did not sign the OSG merits brief taking the opposite position in this case.

This letter may be too late to influence the Supreme Court's resolution of the case. As VC readers know, I do not think the claims in California v. Texas have much merit, and do not believe the Court was likely to have given the Justice Department's prior position much heed. Accordingly, I doubt this last-minute change will affect the case's outcome, or even the vote of a single justice. That said, it does put the Biden Administration on record in this case.

For those interested in more on California v. Texas, here is a list of my prior VC posts on the case, and a few NYT op-eds. (Updated to keep the list more current.)

NEXT: Breaking: Deputy Solicitor General Kneedler Withdraws SG's Brief in ACA Case

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So one issue that I think the Biden administration (and other administrations moving forward) are going to have to struggle with is the shattering of certain institutional norms during the Trump administration.

    There is a reason that a certain deference was accorded to the DOJ's position. There is a reason that our allies traditionally expected the State Department to behave a certain way. There is a reason that, in all sorts of area, certain things were done (and continued to be done) irrespective of the administration. The institution mattered, and great care was taken to make sure that institutional integrity outlived the vicissitudes of any given Presidency.

    I don't know that we will get these back. Part of the problem is what you see here; to undo the breaking of one norm the DOJ affirmatively arguing against federal law and switching positions based on administration), you have to go against another norm (reversing position with the change in administration).

    Norms. They really do matter.

    1. Institutional integrity is an oxymoron as you describe it. Inertia is one better word. There are others.

      1. I know you wouldn't understand the concept, but there are people that place the integrity of themselves and the institutions they work for above their own self interest.

        Time was, this wasn't a hard concept to understand! Oh well, trying to explain integrity to a Trump supporter is like trying to explain "price ceiling" to a San Francisco liberal.

        1. Perhaps you think public choice economics is an oxymoron.

        2. I think that institutional integrity exists, but it's somewhat rare, and it's seriously far less important than substance anyway. E.g., there's definitely certain norms the DOJ had, but a lot of them were bad, carceral, sadistic, careerist norms, such as prosecutorial control of the sentencing process, preventing Presidents from exercising their constitutional authority to pardon, etc. Institutional integrity in service of bad substantive ends is often bad, not good. Whereas graft and petty corruption, while never good, can facilitate some good substantive results in government.

    2. Poor Norm has been violated so much!

      1. I mean, I always knew there was something wrong with the Cliff Clavin.

    3. Trump was elected to break norms like these.

      DOJ or State do not have a valid viewpoint independent of the elected president. Un-elected subordinate officials are only his or her agents to implement policy, not policy makers.

      1. "Trump was elected to break norms like these."

        Interesting. See, the thing is ... the value of certain things actively depends on the idea that it won't change depending on the vagaries of a single election.

        But sure, in between "LOCK HER UP," I must have missed all of the, "AND DEGRADE THE VALUE OF AMERICAN INSTITUTIONS!"

      2. It's telling that the person who is so casual about norms is also pretty proud at having no principles at all, including honesty, so long as his side wins.

        Few things are more corrosive in politics than the conviction that you have been wronged so much that you're justified in breaking all the rules to get even.

        1. The rules are dumb rules.

          Institutions do not have "integrity", people do.

          If Biden wants a DOJ position changed, you can quit or comply. Just like when Trump approved the opposite position.

          Clients, not lawyers, have the final say.

          1. You regularly argue that ALL rules are dumb rules, other than harsh bloody punishments for criminals.

    4. "The institution mattered, and great care was taken to make sure that institutional integrity outlived the vicissitudes of any given Presidency."

      Biden is President, he believes the ACA is constitutional, and Justice Department officials who are unwilling to defend that proposition should resign. And after they've resigned and taken up their new "private sector" jobs, they shouldn't fuss so much about poor Norm.

      1. To compare this to a related issue- stare decisis.

        There are times when a judge thinks a prior decision is wrong. There are times when the judge CAN overrule that decision. But it's not enough for a single judge to both think the decision is wrong and have the ability to overrule it.

        People depend on the stability of the law. They depend on judges following precedent. Not blindly. Not forever. But also not simply overturning ever decision because they disagree with it. Because then the law would have no meaning, no stability, and you couldn't rely on it. It would be constantly changing. I learned this from a very good corporations professor back in the day, who patiently explained to me that it was better for a corporation to deal with a stable and bad set of laws, than to deal with constantly changing "good" laws. Bad stability is better than good chaos (in many ways).

        Certain aspects of the administration, such as the institutional norms that drive the DOJ (justice) and the State Department (foreign relations) truly benefit from those institutional norms that have evolved over decades. Decades. It doesn't mean that a new administration can't change something, but it does mean that administrations need to tread carefully in certain areas, because it's not just about changing a position, it's about weakening the integrity of the institution, which means that it will lack credibility and be weakened ... not just during your administration, but forever after.

        Integrity is something that is you sell incredibly cheapy, but it is oh so dear to buy.

        1. "People depend on the stability of the law."

          And they elect politicians who decide how best to manage tradeoffs involving stability.

          1. Aw! Look at that. Still pretending like you have something to contribute? Still hoping that people might treat you with the dignity and respect you refuse to accord others b engaging with you?

            So, how is that nickname working for you, anyway?

        2. Oh, get off it, bureaucrats don't like being overruled. They can compare themselves to judges if it makes them feel better, they can masturbate to a bust of Cato the Younger, but in the end it's just politics.

          "evolved over decades. Decades."

          In a country where stuff that's a few decades old can sell as "antiques," I guess this seems impressive.

          1. Wow. Okay, I thought you were worth engaging, unlike Misogynist Juvenile Nom De Plume.

            Was I wrong?

            I was using something called an "analogy," but saying that "bureaucrats" are like "judges." It has to do with reliance interests, which provide for stability in things like how the federal government administers justice, and how foreign governments can view the ways in which we do things.

            It doesn't mean things can't change (similar to ... you know, stare decisis), it simply means that for some issues, it has been the case in modern American history that there is some view as to the long-term ramification of changes in policy.

            But sure- I'll add you to the 12" and WYOT list. Saves me time. Thanks!

            1. I'm not sure you realize how off-putting it is for you to put on your Roman toga and declaim "Integrity is something that is you sell incredibly cheap[l]y, but it is oh so dear to buy" - attempting to wrong-foot anyone who doesn't share your premises by putting them in the "anti-integrity" camp.

              Bless your heart!

              1. Bless your cotton socks!!!!

                I appreciate that you so quickly told me to never engage you again.

                Now take a long walk off a short pier. KTHXBYE!

                1. Piss off, and take your Deep State hackery with you.

                  1. Sounds good to me pissboy.

                    Why don’t you reply to someone who thinks you have something to say.

                    Good luck with that!

                    1. How can I miss you if you won't go away?


                    2. Hey. Jerkboy keeps responding when he knows he’s not wanted.

                      I mean, awesome, right?

                    3. And you profess to be indignant that I didn't engage respectfully with you.

                    4. Hey, it's dumbkopf jerkboy, completely missing the point!

                      Wait, was there a point? Did pissboy miss it?

                      Awwwwwwwww ... so sad!

                    5. You started off as the noble Roman bewailing our national loss of virtue, but you got tired of the disguise and reverted to being a nasty troll.

                      From Cicero to Thersites in only a few short steps. Reverting to type.

                    6. Oh no! Whatever shall I do now that I've lost DEEP STATE'S esteem?

                      Oh wait, that's right. I'll never have to worry about engaging with the pissboy again. What a relief!

                    7. As I said, you keep promising to stop engaging, but never do.

                      "How can I miss you if you won't go away?"

                    8. Oh, it's amazing that pissboy can't even hit the pot!

                      I'm not engaging with you. Didn't you notice? Or are you too busy peeing on your shoes?

                      Not just this thread- ever.

                      I'm happy with the choice, because it means never worrying about your DEEP STATE piss, but that's me!

                    9. "I’m not engaging with you."

                      You'll have to do a better job of not engaging.

                    10. Naw. I'll just remind you of your DEEP STATE piss-takes whenever and wherever you respond to me.

                      That's all, forevermore.

                    11. I told you to piss off, and it seems I was right to do so.

                      You wrapped yourself in the cloak of virtue to justify Deep Statish continuity of policy regardless of technicalities like the results of elections.

                      That's hardly very loyal to our form of government, is it?

                    12. Aw, QAnon Cal is making words again.

                      Too late. Run along pissboy.

                    13. You seem much more interested in Q Anon than I am.

                      And much more interested in my attention than you let on.

                    14. QAnon Cal at it again!

                      Something something ... nothing.

                    15. "QAnon Cal"

                      Lying is pretty much second nature to you, isn't it?

                    16. Well, *that* shut you up quickly.

                      It probably dawned on you that you have nothing to back up your lie, so you retreated with your tail tucked between your legs.

                    17. Cal's pretty much correct, Loki.

                      What you're calling "instructional integrity", that is, bureaucrats setting their own policies unresponsive to elected officials is pretty much the deep state.

                      But I guess you figured that out, and that's what's reduced you to spittle flecked, profanity laced posts.

          2. Cal, congrats, you just triggered loki by disagreeing with him.

            He doesn't like that.

            1. Bob said triggered. I just got my Bingo for today!

      2. "Biden is President"

        Yes, he gets to call the shots for good or bad. Loki wants the elected and responsible person to abide by the "norms" of his subordinates, he has it backwards.

        1. That's not it at all, Bob.

          America has power in many ways. One of those ways that it has power is in its institutions. For example, the power that Trump exercises was, in part, due to the institutions that he controlled. And part of that power came from how people perceived the reliability and credibility of those institutions.

          In essence, every President owes a debt to their predecessor, and most pay off that debt by bequeathing that reliability and credibility to their successor.

          I'm not saying that you have to agree with it- after all, you're of the nihilist, blow it all up school, but at a minimum it helps to at least understand what people are saying. *shrug*

    5. Which norms? The Obama admin filed many briefs arguing against the constitutionality of statutes. One example is the DOMA case.

    6. Loki, I don't think the "deference to the DOJ" was really ever real (SCOTUS has ruled against the DOJ all the time), and I also don't think it is a good rule (one of the key purposes of an independent judiciary is to check the executive branch, and actually deferring to the DOJ would erode that check).

  2. "The ACA's Legislative Findings Do Not Constitute an "Inseverability Clause" isn't a valid link, just in case you want to fix that.

Please to post comments