The Volokh Conspiracy
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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 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.
For reasons I have explained many, many time, this "choice" reading can only exist in Part III.C of the Chief's controlling opinion, under the auspices of the saving construction. See the Cato brief for details.
Fourth, the letter states that the 2017 TCJA did not convert Section 5000A(a) into an unconstitutional mandate. The same choice remains:
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.
Fifth, the letter states the new position with respect to severability. In short, Section 5000A(a) can be severed from the remainder of the statute.
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.
Sixth, the SG did not request a new round of briefing. There was no need to. The SG has now lined itself up with California and other amici:
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.
If the Court had decided this case last week, the Justices would have obviated the need for the SG to switch sides. Now, the SG has done so. Sometime between now and the end of June, we will get a decision. Stay tuned.
Update: A colleague flagged a seventh point. Kneedler did not address Noel Francisco's position with respect to standing. Perhaps this move reaffirms the point I made in my prior post: the SG would not want to win on standing.