WASHINGTON (AP) – The case is pending in the Supreme Court on the fate of the Affordable Care Act it could give the Biden administration its first chance to chart a new course before the judges.
The health case, argued a week after the November election, is one of several issues, along with immigration and a separate case on Medicaid work requirements, where the new administration could take a different position from the Trump administration in the high court.
While a change would be in line with President Joe Biden’s political preferences, it could cause consternation in court. Judges and former officials in Democratic and Republican administrations routinely warn that new administrations should be reluctant to change positions in court.
Judge Elena Kagan, who as attorney general was President Barack Obama’s Supreme Court attorney before appointing her to court, said at a 2018 forum that the bar should be raised.
“I think changing positions is a big thing that people should doubt for a long time, which doesn’t mean it never happens,” Kagan said at the time. In fact, Trump’s Justice Department changed four times in the first term of the administration’s high court.
Still, the case of health care is a good candidate for when a rare change of position can be justified, said Paul Clement, who was attorney general to President George W. Bush.
The Justice Department defends federal laws in the Supreme Court “as long as reasonable arguments can be presented,” Clement said at an online forum at Georgetown University.
The Trump administration asked judges to overturn the entire Obama-era law under which some 23 million people have health insurance and millions more with pre-existing health conditions are protected from discrimination.
Biden was vice president when the law was enacted, calling it famous as the “big (explosive) deal” the day Obama signed it into law in 2010.
As president, Biden has called for law enforcement and has already reopened enrollment for people who could have lost their jobs and the accompanying health insurance due to the coronavirus pandemic.
In the case of health care, the court could rule that the requirement, now toothless, that people can get insurance or pay a penalty is unconstitutional and leave the rest of the law alone. This result, rather than withdrawing the entire law, seemed likely based on questions and comments from judges in November.
The Justice Department could simply file a new legal brief saying its views have changed, said former acting attorney general Neal Katyal, also a veteran of the Obama administration, at the same Georgetown event. A second court hearing is unlikely.
Clement agreed. “I think the judges would welcome him,” he said. “I also think it’s an incredibly strong position.”
But Clement warned that the new acting attorney general, Elizabeth Prelogar, will have to choose her positions before the judges, three of whom were appointed by President Donald Trump. “The Biden administration will have to realize that it is arguing in front of a reasonably conservative court,” he said.
Biden’s orders during the first week of his presidency may also affect two cases scheduled to be discussed next month over Trump administration political controversies involving immigrants.
In one case, Trump was not satisfied with the money allocated by Congress for the construction of a wall along the Mexican border. Trump declared a national emergency and identified about $ 7 billion earmarked for other purposes to use to build 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 allowed work on the wall to continue as the case made its way through the legal system.
Much of the money has already been spent and Biden terminated the emergency on his first day in office. The Justice Department could tell the court that there is nothing left to decide.
The same could happen with the legal challenge of Trump’s policy that forced asylum seekers to wait in Mexico for U.S. court hearings. Biden has suspended policy for newcomers.
“It looks like the case could be debatable, but we’re waiting to hear from the acting attorney general about what they want to do. Obviously, it’s a welcome policy change,” said Judy Rabinovitz, a lawyer for the American Civil Liberties Union. challenging politics.
A dispute over waivers that the Trump administration granted to states to impose labor requirements on people receiving their health care through the Medicaid program could also be affected.
Biden on Thursday directed the Department of Health and Human Services to review the waivers, but it is unclear how quickly the administration could act to undo them and whether the changes could derail the Supreme Court case.
The waivers were overturned in the lower courts and the states appealed. In early December, the judges knew there would be a new administration by the time they learned of the case, but decided to take it on anyway.