Tuesday, May 5, 2020

The Trump Administration Did Not Support The Total Invalidation of the "Entire" ACA before the 5th Circuit

By Josh Blackman - May 05, 2020 at 12:55PM

CNN reports that change may be afoot in the Obamacare litigation:

Attorney General William Barr made a last-minute push Monday to persuade the administration to modify its position in the Obamacare dispute that will be heard at the Supreme Court this fall, arguing that the administration should pull back from its insistence that the entire law be struck down.
With a Wednesday deadline to make any alterations to its argument looming, Barr made his case in a room with Vice President Mike Pence, White House counsel Pat Cipollone, members of the Domestic Policy Council, press secretary Kayleigh McEnany and several other officials. The meeting ended without a decision and it was not immediately not clear if any shift in the Trump administration's position will emerge.
Barr and other top advisers have argued against the hard-line position for some time, warning it could have major political implications if the comprehensive health care law appears in jeopardy as voters head to the polls in November.
According to four sources familiar with the meeting, Barr argued for modifying the administration's current stance to preserve parts of the law, rather than fully back the lawsuit filed by a group of Republican states. As it stands now, the Trump administration's position seeks to invalidate the entire Affordable Care Act, signed by President Barack Obama in 2010 and commonly known as Obamacare.

DOJ did not argue that the "entire" ACA must be invalidated. Nor did the Fifth Circuit reach that conclusion. Rather, both the federal government and the court of appeals advanced, quietly, Justice Thomas's position on severability from Murphy v. NCAA. This test will only declare unconstitutional the unseverable provisions of the law that actually injure the plaintiff. And a remand would be in order to determine, in the first instance, what provisions of the law meet that test.

Alas, this nuanced legal position is politically irrelevant. (Co-blogger Jon Adler flagged this story earlier.)

The SG will have to make a decision soon. Bottom-side briefs opposing the judgment below are due this week. Top-side briefs supporting the judgment below are due in June. If the SG does flip positions, then neither party would actually defend the Fifth Circuit's judgment. Texas will still seek complete invalidation. I'll have more to say about this issue in due course.

One final point. In March, I considered whether the ACA case would be heard during the October 2020 sitting, before the election. Due to the Coronavirus, the Court rescheduled ten cases from the current term till next term. According to the Supreme Court's calendar for the October 2020 Term, there are six possible oral argument dates prior to election day: October 5, 6, 7, 13, 14, and November 2. Assuming each case is one hour long, the Court can hear twelve hours of argument time before the election. If all ten cases from this term are heard in October,  there will only be two hours for non-rescheduled cases before the election. Will the ACA case be one of those decisions? Of course, the Court can add afternoon sittings to catch up.

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