Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Biden DOJ No Longer Argues That the ACA Is Unconstitutional

The following is an excerpt:

While the Supreme Court is in recess this week, and public attention is drawn to the trial of Donald Trump in the Senate, there is one event at the Court that is worthy of attention, particularly by those who counsel clients in the health care space. In a letter to the Court, the Biden Department of Justice (“DOJ”) has reversed the position that the previous administration had taken in the cases of California v. Texas and Texas v. California, where the government had filed a brief in support of the total invalidation of the Affordable Care Act (“ACA”).

The instant matter derives from congressional passage of the Tax Cuts and Jobs Act of 2017, which, among other things, eliminated the ACA’s so-called “individual mandate,” which created a tax penalty for Americans who elected to remain without health insurance. It was that provision which the Chief Justice relied upon in joining the Court’s liberals to form a majority upholding the ACA in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). With the penalty first having been zeroed out and then eliminated altogether, Texas and several other states argued that there now was no basis to uphold the ACA itself, and that it must be declared unconstitutional in all regards as an improper exercise of Congress’s taxation powers. The complaining states largely prevailed in lower court decisions, and the Supreme Court granted cert. to the Fifth Circuit to resolve the question. The Trump administration’s DOJ filed a brief on behalf of federal respondents supporting the position of Texas that the whole ACA should be declared unconstitutional.

Click here to read the full post and more on SCOTUS Today.