#TexasFoldEm: Biden Admin formally reverses DoJ stance, tells SCOTUS the mandate is absolutely severable

An unsurprising but still very welcome development in the Endgame of the ongoing #TexasFoldEm #ACA lawsuit:

NEW: Biden admin tells Supreme Court that ObamaCare remains constitutional even without a tax penalty to enforce the individual mandate—a reversal from Trump admin's position


— John Kruzel (@johnkruzel) February 10, 2021

Here's the full text of the letter sent to the clerk of the U.S. Supreme Court by Deputy Solicitor General Edwin S. Kneedler. It's actually pretty cut & dry for this sort of legal document:

Dear Mr. Harris:

On November 10, 2020, this Court heard oral argument in these consolidated cases concerning whether, as a result of the elimination in 2017 of the monetary payment under 26 U.S.C. 5000A, which was enacted as part of the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119, that provision is no longer a valid exercise of Congress’s legislative authority; and whether, if that provision is now invalid, the remainder of the ACA’s provisions are inseverable from it.

1. The federal respondents had previously filed a brief contending that Section 5000A(a) is unconstitutional and is inseverable from the remainder of the ACA, although the scope of relief entered should be limited to the provisions shown to injure the plaintiffs. The government advanced the same positions at oral argument. 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.

2. After reconsideration of the issue, it is now the position of the United States that the amended Section 5000A is constitutional. In National Federation of Independent Business v. Sebelius (NFIB), this Court held that the payment provision in Section 5000A could be sustained as a valid exercise of Congress’s constitutional power because it offered a choice between maintaining health insurance and making a tax payment. 567 U.S. 519, 570, 574 & n.11 (2012). In so ruling, the Court noted that no negative legal consequences attached to not buying health insurance beyond requiring a payment to the IRS, and that the government’s position in the case confirmed that if someone chooses to pay rather than obtain health insurance, that person has fully complied with the law. Id. at 568. Congress in 2017 amended Section 5000A(c) by reducing to zero (effective in 2019) the shared responsibility payment assessed under Section 5000A(b) as a lawful alternative to purchasing insurance under Section 5000A(a), see Tax Cuts and Jobs Act, Pub. L. No. 115-97, Tit. I, § 11081, 131 Stat. 2092, but it did not amend Section 5000A(a) or (b). 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. Rather than imposing a new burden on covered individuals, the 2017 amendment preserved the choice between lawful options and simply eliminated any financial or negative legal consequence from choosing not to enroll in health coverage.

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. NFIB, 567 U.S. at 587 (opinion of Roberts, C.J.). And the “normal rule is that partial, rather than facial, invalidation is the required course.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (citation and internal quotation marks omitted). 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.

3. Because oral argument was held and these cases were submitted three months ago, and because other parties have fully briefed both sides of the questions presented, the United States is not requesting supplemental briefing. I would appreciate it if you would circulate this letter to the Members of the Court.

OK, so what does this mean?

Well, it doesn't mean that the lawsuit is over or that it's been thrown out or anything like that, unfortunately. Again, the case was heard by the Supreme Court last November (a week after the election), and now everyone's just waiting for SCOTUS to issue their ruling. I have no idea whether the GOP plaintiffs could drop the case at this point even if they wanted to (I imagine they could, but I'm not a Constitutional law expert or even a lawyer); it may be completely out of everyone's hands except the 9 SCOTUS Justices at this point.

What it does mean is that the plaintiffs have officially lost a major supporter in their case...the entire federal government of the United States. The DoJ's job is supposed to be to to defend the law of the land against cases like this, but back in June 2018, Donald Trump's Justice Dept. did something extremely unusual and unprecedented: Not only did they refuse to defend the law (not that surprising given who we're talking about), but they even went one step further as to agree with the plaintiffs that the ACA should be struck down. (At the time, oddly, they "only" wanted the pre-existing condition protections eliminated, but later on they decided that the entire law had to go).

This meant that until now, the only ones defending the law have been a coalition of about 20 Democratic state Attorneys General (after Democrats retook the U.S. House of Representatives, they also signed on as defendants as well, but I think they were removed from the case at some point as not having jurisdiction or something). This meant that the entire case was being fought by ~20 GOP AGs vs. ~20 Dem AGs...and in fact in two cases (Wisconsin and Colorado, I believe), the states flipped from prosecuting the case to defending the ACA because Democrats flipped the state Attorney General seats.

Today's letter makes it clear that the U.S. Justice Department is now, too, doing exactly what it should have done in the first place: Defending the Affordable Care Act. The letter above boils down to what should be two simple, obvious points:

  • First: There's nothing unconstitutional about changing the federal Shared Responsibility Payment from $695 to $0 (or from 2.5% of income to 0.0%).
  • Second: Even if you agree that the Shared Responsibility provision is unconstitutional, it can be removed by itself without causing any further damage to the rest of the law.

Will this development make any difference in the outcome fo the case? I have no idea, but Justice Roberts has to have had it up to here with these idiotic ACA lawsuits, and even Trump appointees like Justice Brett Kavanaugh seemed inclined to go for full severability. Hell, even Justice Alito seemed pretty unimpressed by the plaintiff's logic last fall.

However...anything could happen at this point, which is why I'm still holding out hope that Congress will #MootTheSuit via legislative action.

Stay tuned...