DOJ Flips Under Biden, Now Tells Supreme Court Obamacare Is Constitutional

The U.S. Supreme Court in Washington on Feb. 1, 2020. Daniel Slim/AFP via Getty Images

President Joe Biden’s Justice Department told the Supreme Court on Feb. 10 that it no longer thinks the Affordable Care Act (ACA), also known as Obamacare, is unconstitutional, and it urged the court to uphold the health care law.

The shift in legal position represents a reversal from the Trump administration’s stance that Obamacare should be invalidated because a key provision of the law, referred to as the “individual mandate,” is unconstitutional.

“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 (pdf).

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This development was made in a pending case in which both sides have already presented oral arguments to the Supreme Court. The case in question was brought to the top court by California and other Democratic states after a lower court found a key tenet of the ACA unconstitutional.

In December 2019, judges at the 5th U.S. Circuit Court of Appeals in New Orleans ruled 2–1 that the “individual mandate” was invalid, after Congress removed the mandate in 2017, rendering the law unenforceable. The mandate required people to obtain health insurance or pay a tax penalty.

Following the amendment from Congress, a group of red states and two private individuals filed a lawsuit claiming that the provision was no longer constitutional and that the entire ACA needed to be invalidated because the provision was inseverable from the rest of the law.

A district court judge in Texas found in favor of the plaintiffs, prompting an appeal to a circuit court. That court upheld the plaintiffs’ constitutional claims and sent the case back to the district court for a more detailed review of the question of the severability of the individual mandate.

Before the district court could complete that review, state officials from a coalition of blue states asked the Supreme Court in January 2020 to take up the case and review the lower court’s decision. The House of Representatives also filed a similar appeal the same month, asking the court to review the lower court’s decision.

Oral arguments were heard on Nov. 10, 2020. The Trump administration, which declined to defend the ACA, and red states led by Texas, argued that the individual mandate was unconstitutional and, as a result, the entire ACA should be struck down. Meanwhile, blue states and the House of Representatives rejected the argument that the entire Obamacare statute should fall.

In the letter, the Biden administration elaborated on the Democrats’ position, telling the court that it believes the mandate is constitutional.

“In the view of the United States, Congress’s decision to reduce the payment amount to zero therefore did not convert Section 5000A from a provision affording a constitutional choice into an unconstitutional mandate to maintain insurance,” Kneedler wrote.

He added that if the court finds the mandate unconstitutional, then the court should find that the “provision is severable from the remainder of the ACA.”

“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,” he wrote.

Kneedler told the court that the department wasn’t asking for supplemental briefing.

Former President Donald Trump’s administration and Republicans had taken steps to weaken the ACA in an effort to ultimately repeal and replace the Obama-era law with more lower-cost options. They say the ACA represented government overreach that increased the cost of health care.

Meanwhile, Democrats have vowed to strengthen the law following the Republicans’ efforts to invalidate it through this case. The $1.9 trillion COVID-19 relief package that was being drafted by House Democrats contains the first expansion of the ACA in more than a decade.

The top court is expected to render a decision in the case by the end of this term in late June.