The government has abandoned Trump's effort to repeal Obamacare by judicial decree

[DonViejo]

A frivolous lawsuit seeking to repeal Obamacare is still before the Supreme Court.

By Ian Millhiser Feb 11, 2021, 10:00am EST

One of former Solicitor General Noel Francisco’s final acts as the Trump administration’s top litigator was to sign a brief claiming that Obamacare should be struck down by the Supreme Court. The arguments in that brief, as well as the arguments raised by the plaintiffs in California v. Texas, are widely viewed as absurd even by conservative scholars who have, in the past, tried to convince the courts to dismantle Obamacare.

Nevertheless, this brief in a still-pending Supreme Court challenge placed President Joe Biden’s Justice Department in a difficult position. Traditionally, the solicitor general’s office is extremely reluctant to switch its positions in pending cases, even when a new administration takes over. The Bush administration did not switch its position in a single Supreme Court case that had already been briefed by President Bill Clinton’s Justice Department. And the Obama administration did not abandon any of the positions taken by the Bush administration.

This traditional practice exists for a very good reason — changing positions after a case has already been briefed tends to piss off the justices. During his tenure as solicitor general, Francisco did not adhere to the Justice Department’s ordinary practice, leading Justice Sonia Sotomayor to ask him during a 2018 oral argument “how many times this term already have you flipped positions from prior administrations?” (According to Georgetown law professor Marty Lederman, the answer to Sotomayor’s question was at least a dozen times.)

The Biden administration appears to have decided to treat Francisco’s brief in the Texas case with the same regard that Francisco held for his predecessors’ arguments. In a letter filed with the Supreme Court on Wednesday, Deputy Solicitor General Edwin Kneedler officially informed the Court that “the United States no longer adheres to the conclusions in the previously filed brief.”

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https://www.vox.com/2021/2/11/22276954/supreme-court-obamacare-justice-department-solicitor-general-noel-francisco-california-texas

[Wounded Bear]

1. I suspect CJ Roberts doesn't really want his court to argue this case...

He managed to not eviscerate it the first go-around, though they weakened it by letting states opt out of the Medicaid expansion.

Now? I suspect Roberts wants some kind of an out, and having the US DoJ pulling out could give him that. Frankly, it should be illegal for the DoJ to argue against laws passed by Congress. JMO, but it seems counter productive to say the least. DoJ is supposed to enforce law, not oppose it.