By Kalvis Golde and James Romoser
on January 28, 2021
at 4:32 pm
Elizabeth Prelogar, who will lead the attorney general’s office under the administration of Biden, argued before the court during her previous role in the office (Art Lien).
“We haven’t changed position in a single case. Not one. “
Such was the determination of Neal Katyal when he took office as attorney general in the early days of President Barack Obama’s tenure in 2009. The attorney general’s office is tasked with establishing and defending the government’s position in Supreme Court cases, and when Katyal first started he had to decide what to do with inherited positions in a number of cases from President George W. Bush.
Katyal spoke Wednesday in a conversation at the Georgetown Supreme Court with Paul Clement, who headed the office during Bush’s transition from President Bill Clinton eight years ago. Clement reported a similar approach. There was “not a single case,” he said, that had been brought up to the Supreme Court to deviate from the position of the Clinton administration, and “in the vast majority of cases.” [lower court] Cases, even some that have been controversial … continuity has been preserved. “
The two jointly discussed whether President Joe Biden’s acting attorney general Elizabeth Prelogar would similarly maintain all or most of the Trump administration’s legal positions in live cases – a result both believed unlikely.
In pending cases involving Affordable Care Act, Immigration, Voting Rights, and other important issues, the Trump administration has taken positions that strongly contradict the political views of the Biden administration. However, moving to the Supreme Court is not an easy matter. It can risk undermining the Attorney General’s traditionally apolitical reputation – and judges often frown.
“I think the current government is facing something very different from you or me,” Katyal told Clement. Donald Trump’s attorney general Noel Francisco was exceptional in many ways, including his willingness to abandon the legal theories of previous administrations more often than usual. Under Francisco, the attorney general moved “positions like candy,” said Katyal.
Some of Francisco’s positions terrified veterans of the office. Clement and Katyal highlighted California versus Texas, in which the Trump administration backed Republican states and argued that the entire Affordable Care Act should fall because of its individual mandate to buy insurance or to impose a penalty through a 2017 law was canceled, which set this penalty to zero. “I can’t think of a living or dead attorney general who would take this position,” said Katyal. “Still [Francisco] did. “
In the past, the attorney general’s office has been viewed as representing the continuing interests of the United States, not the political interests of a single presidential administration. “It was the Justice Department’s long-term position to defend the constitutionality of statutes when reasonable arguments can be made,” said Clement. In the ACA dispute, he continued: “Even if you believe that part of a law is unconstitutional, it would be in the long-term interest of the Office to drop as little as possible from the act.”
Both cited Prelogar, who began as acting attorney general on Jan. 20 and will serve in that role until a permanent attorney general is appointed and confirmed, as likely to deviate from Francisco’s approach. Katyal called Prelogar “an institutionalist” and outlined the dilemma she faces: “Should [she] deviate from the position now being brought before the court … which itself has deviated from the position of the previous administrations? On the one hand, Katyal argued, a return to positions advocating the “long-term” interests of the federal government is “likely required if you are an institutionalist”. On the other hand, Clement countered and switched positions in a live case, especially a case like the ACA dispute which is already fully briefed and discussed is a delicate matter.
In some cases, the policy choices made by the Biden government can eliminate the need for a formal change in law. For example, two cases with controversial Trump immigration policy are to be discussed in the coming weeks: Trump against Sierra Club, where the border wall is funded by Trump, and Wolf against Innovation Law Lab, which deals with Trump’s “whereabouts in Mexico”. Policy of forcing asylum seekers on the southern border to stay in Mexico while waiting for hearings. Biden has already ordered an end to both directives and the cases could now be contentious.
Similarly, Biden has signaled his intention to review the approval of Medicaid’s work requirements by the Trump administration in some states. If the Biden government revokes those permits, the Supreme Court case challenging them, Azar v Gresham, could come up for discussion.
In other cases, however, there is no possibility of discussion – which means that Prelogar must decide whether to retain the legal positions of the Trump administration. For example, on March 2, in the Brnovich v. Democratic National Committee, the court will hear arguments involving a DNC contesting voting law against electoral policy in Arizona. The Trump administration filed a brief defense of the guidelines. Prelogar must now decide whether to file a new pleading rejecting this position and arguing that Arizona policies should be put down.
Such decisions, Clement said, have traditionally been largely free of political influence – though the attorney general formally reports to the attorney general, who reports to the president. Often referred to as the “10th Justice,” the Attorney General has a “sense of independence,” a shared understanding among their lawyers that they are “really facing the court.”