While the U.S. Supreme Court has yet to rule on the fate of the Affordable Care Act, the Biden administration on Wednesday took steps to support the landmark healthcare law.
In a letter to the high court, the Justice Department under the new administration said it believes Obamacare's individual mandate is constitutional. But if the justices disagree, the Biden administration believes the rest of the Affordable Care Act can stand without the provision requiring insurance coverage. The Justice Department cited Congress' 2017 decision to zero out the individual mandate penalty rather than eliminating it altogether.
"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," Deputy Solicitor General Edwin Kneedler wrote to the court.
During November oral arguments, the justices appeared unlikely to strike down the ACA in its entirety. All nine justices asked whether the GOP-led states or individuals they represented had standing to challenge the law, a pre-requisite for the court to eliminate either the individual mandate or all of Obamacare. Chief Justice John Roberts and Associate Justice Brett Kavanaugh also indicated they would likely favor severing the challenged individual mandate from the rest of the law. Roberts expressed skepticism at the GOP states' argument that legislative findings related to the ACA constituted an inseverability clause.
"It doesn't look like any severability clause anywhere else in the rest of the U.S. Code to me," Roberts said.
The federal government's about face won't prevent the Supreme Court from weighing in on the lawsuit. Kneedler didn't request new oral arguments or additional briefing from the state attorneys general.
It's possible the shift in stance could frustrate the justices. Justice Elena Kagan previously served as solicitor general and said in 2018 that the bar for changing positions should be high. "I think changing positions is a really big deal that people should hesitate a long time over, which is not to say that it never happens," Kagan said at the time.
Biden was vice president when the law was enacted, famously calling it a "big (expletive) deal" the day Obama signed it into law in 2010.
