For four years the law remained a consistent target at the center of former President’s Donald Trump’s political dart board.
His ire culminated a little more than three months ago, when acting Solicitor General Jeffrey B. Wall told the justices that they should invalidate the entire 900-page law.
The challenge for Biden’s Justice Department is not only telling the justices it manifestly opposes the position taken by the Trump administration in the case, but how to pull off the task. Changing its position on the Affordable Care Act wouldn’t end the lawsuit, which was brought by Texas and other Republican-led states, but could inform how the justices look at the case.
When to change positions
Recently, three powerful former members of the Office of Solicitor General, a small cadre of top-notch appellate lawyers who argue the government’s position before the Supreme Court, have made clear that there are times when the head or acting head of the Office should not shy away from a change of position.
To be sure, the solicitor general’s office, comprised of political and career lawyers, prides itself in representing long-term institutional interests of the United States, not the political whim of a particular president. As such, its interest in the stability of the law and its own credibility before the justices is paramount and a change of position based on a new administration has been institutionally…
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