Biden’s DOJ Reverses Course in Case Seeking to Overturn ACA

February 10, 2021
Allison Inserro

The Department of Justice (DOJ), under a new administration, on Wednesday dropped its previous position that the now-defunct tax provision in the Affordable Care Act (ACA) cannot be severed from the rest of the law, thus making the entire health law unconstitutional.

The Department of Justice (DOJ), under a new administration, on Wednesday dropped its previously held position that the now-defunct tax provision in the Affordable Care Act (ACA) cannot be severed from the rest of the law, thus making the entire health law unconstitutional.

The Biden administration formally notified the Supreme Court of the change in a letter, writing, “the United States no longer adheres to the conclusions in the previously filed brief of the federal respondents.”

Biden, who recently issued an executive order reopening the exchanges created by the ACA from February 15 to May 15 to help those who lost their insurance due to the pandemic, campaigned on the idea of strengthening the ACA rather than repealing it, as the Trump administration long tried to do.

Under the previous administration, the DOJ refused to defend the constitutionality of the landmark 2010 health law, also known as Obamacare. Republican-governed states, led by Texas, sued to overturn the ACA; the Supreme Court is expected to issue a ruling by the end of June.

The court in November 2020 held oral arguments in the case.

The letter sent to the court Wednesday says, "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."

That section of the ACA was rendered moot by the 2017 tax reform law passed by Congress, eliminating the tax penalty for not having health insurance. The Republican-led lawsuit claimed that without the monetary penalty—which was reduced to $0—the entire ACA was invalid, as the provision could not be severed.