Biden DOJ Urges Supreme Court to Leave Obamacare Intact
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Biden Admin Tells SCOTUS That DOJ Has Reversed Course on Trump’s Obamacare Position, and Implores Justices to Leave ACA Intact

The Department of Justice (DOJ) on Wednesday notified the Supreme Court of the United States that the Biden administration will not support terminating the Affordable Care Act (ACA), an expected reversal from the Trump administration’s repeated attempts to eliminate the program also known as Obamacare.

“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,” Deputy Solicitor General Edwin S. Kneedler wrote in a two page letter to the Court’s clerk.

In Nov. 2020, the justices heard oral arguments in California v. Texas, which centered around the constitutionality of the ACA after congressional Republicans amended Section 5000A of the legislation to excise the “tax” levied against those who failed to abide by the health insurance mandate. The Trump administration backed Texas in the litigation, arguing that the “entire ACA must fall” because the measure was unconstitutional and the individual mandate was inseverable from the remainder of the law.

Unsurprisingly, Kneedler informed the justices that the Biden administration no longer believes the health care law violated the Constitution. The Biden administration contends that even if the justices find the now-gutted Section 5000A to be unconstitutional, it should simply be severed from the rest of the law and the remainder of the law should stay intact. The justices may be more receptive to this argument.

Generally, courts favor severability—eliminating an unconstitutional portion of a law while preserving the rest of a statute.

In the context of the ACA, Congress’s 2017 amendment shows that Congress itself chose to change the individual mandate while leaving the rest of the ACA intact.

“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,” Kneedler wrote. “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.”

Kneedler did not ask the justices to allow the DOJ to provide supplemental briefs on the matter before the court reaches a decision, which many expect to be reached over the summer.

Read the full letter below.

DSG SCOTUS Obamacare Letter by Law&Crime on Scribd

[image via Chip Somodevilla/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.