WASHINGTON (AP) – The pending Supreme Court case on the fate of the Affordable Care Act it could give the Biden government the first opportunity to chart a new course in front of the judges.
The case of health, argued a week after the November election, is one of several issues, along with immigration and a separate case on Medicaid’s job requirements, where the new administration could take a different position from the Trump administration in the higher court.
While a change is in line with President Joe Biden’s political preferences, it can cause dismay in court. Judges and former officials in the Democratic and Republican administrations routinely warn that new governments must generally be reluctant to change positions before the court.
Judge Elena Kagan, who as attorney general was the Supreme Court’s chief lawyer for President Barack Obama before he appointed her to court, said in a 2018 forum that the requirement should be high.
“I think changing positions is really big business, and people should be hesitating for a long time, which is not to say it never happens,” said Kagan at the time. In fact, Trump’s Justice Department made a switch four times in the administration’s first full high court term.
Still, the health care case is a good candidate for when a rare shift in position can be justified, said Paul Clement, who was Attorney General for President George W. Bush.
The Justice Department upholds federal laws in the Supreme Court “whenever reasonable arguments can be made,” said Clement in an online forum at Georgetown University.
The Trump administration asked judges to overturn the entire Obama era law under which about 23 million people obtain health insurance and millions more with pre-existing health problems are protected from discrimination.
Biden was vice president when the law was enacted, famous for calling it “big (bad word)” on the day that Obama sanctioned it in 2010.
As president, Biden called for the law to be strengthened and has reopened registrations for people who may have lost their jobs and the health insurance that accompanies them because of the coronavirus pandemic.
In the case of the health care system, the court may rule that the now ineffective requirement that people obtain insurance or pay a fine is unconstitutional and set aside the rest of the law. This result, instead of overturning the entire law, seemed likely based on questions and comments from judges in November.
The Justice Department could simply file a new legal petition saying its views have changed, said former acting attorney general Neal Katyal, also an Obama administration veteran, at the same event in Georgetown. A second hearing is unlikely.
Clement agreed. “I think the judges would accept it,” he said. “I also think it is an incredibly strong position.”
But Clement warned that the new interim attorney general, Elizabeth Prelogar, will have to choose his seats before the judges, three of whom were appointed by President Donald Trump. “The Biden government will have to realize that it is presenting arguments to a reasonably conservative court,” he said.
Orders issued by Biden in the first week of his presidency could also affect two cases scheduled for discussion next month about the Trump administration’s controversial policies involving immigrants.
In one case, Trump was unhappy with the money Congress sent to build a wall along the Mexican border. Trump declared a national emergency and identified nearly $ 7 billion appropriated for other purposes, to be used in building sections of the wall.
The case before the Supreme Court involves $ 2.5 billion in Department of Defense funds. Lower courts have ruled that what Trump did is probably illegal, but the Supreme Court has allowed work on the wall to continue as the case progressed through the legal system.
Much of the money has already been spent and Biden rescinded the emergency on his first day in office. The Justice Department could tell the court that there is nothing more for him to decide.
The same may be true of the legal challenge to Trump’s policy that forced asylum seekers to wait in Mexico for US court hearings. Biden has suspended policy for newcomers.
“It looks like the case may be debatable, but we are waiting for a response from the interim attorney general about what they want to do. It’s obviously a welcome change in policy, ”said Judy Rabinovitz, a lawyer for the American Civil Liberties Union, which is challenging the policy.
A dispute over the exemptions that the Trump administration has granted states to impose job requirements on people receiving their health care through the Medicaid program may also be affected.
Biden on Thursday instructed the Department of Health and Human Services to review the exemptions, but it is unclear how quickly the government could act to undo them and whether the changes could render the Supreme Court case unviable.
The waivers were overturned in lower courts and the states appealed. In early December, the judges knew that a new administration would be in effect by the time they heard the case, but decided to accept it anyway.