By Amy Howe
on February 10, 2021
at 5:30 p.m.
President Joe Biden’s Department of Justice filed a letter confirming the government’s change in position on the Affordable Care Act. (JL IMAGES / Shutterstock.com)
Three months after the judges tried orally in the constitutional challenge to the Affordable Care Act, the Biden administration on Wednesday told the Supreme Court to obey all of the law, a departure from the Trump administration’s position. Since the process of drafting the opinion on the case is likely to be well underway, the federal government’s reversal is largely symbolic and is unlikely to have any bearing on the outcome of the case, especially given the fact that the majority of judges at the hearing on Jan. November 11th appeared to agree with this opinion. If the law’s individual insurance mandate is unconstitutional, the rest of the ACA can still survive.
In 2012, the Supreme Court rejected, by a vote of 5 to 4, a challenge to the constitutionality of the mandate (the legal provision that directs virtually all Americans to purchase health insurance) with Chief Justice John Roberts and the court’s four judges, more liberal judges who conclude that a lawful tax is imposed on those who do not purchase health insurance. The question at the center of the current California v Texas case is whether the mandate is still constitutional after Congress reduced the penalty for not getting health insurance from $ 695 to $ 0. If the majority of judges agree that the mandate is unconstitutional, the court must decide whether the mandate can be separated from the rest of the ACA or whether the entire ACA must fall – an issue known as separability.
The Trump administration refused to defend the law, arguing before the Supreme Court that without the penalty, the mandate could no longer be justified as a tax and was therefore unconstitutional. Trump’s Attorney General Noel Francisco joined a group of Republican-led states that argued that the entire ACA was invalid as a result.
In a two-page letter to the court on Wednesday, Assistant Attorney General Edwin Kneedler wrote that “the Justice Department has reconsidered the government’s position” and “is no longer following the conclusions of Francisco’s brief filed last February.” Kneedler (a career clerk in the attorney general’s office) said President Joe Biden’s acting attorney general, Elizabeth Prelogar, will be expelled from the case (presumably because she was writing a report on an ACA on behalf of U.S. Senators who support the ACA “Friend of the court” submitted was still in private practice).
First, explained Kneedler, the government now takes the position that the mandate is constitutional. “The decision by Congress to reduce the payment amount to zero,” he argued, “did not convert the mandate” from a provision allowing constitutional choice to an unconstitutional mandate to maintain insurance. “Instead,” the amendment of 2017 preserved the choice between legitimate options and simply removed any financial or negative legal ramifications of not having health insurance. “
Second, Kneedler continued, even if the mandate is unconstitutional, the government’s position now is that it can be separated from the rest of the ACA. There is a presumption that an unconstitutional provision will be repealed, Kneedler suggested, that “cannot be overcome here,” especially if Congress, which reduced the penalty for not getting health insurance to zero, also kept the rest of the ACA in place and at the same time Left place. ”
Kneedler informed the judges that the government had not asked the court to order additional information in this case because an oral hearing had already taken place three months ago and “because other parties have already fully informed both sides of the questions raised”.
A decision in this case is expected by summer.
This article was originally published by Howe on the Court.