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.

Back to Commercial Litigation Update Blog

Search This Blog

Blog Editors


Related Services



Jump to Page


Sign up to receive an email notification when new Commercial Litigation Update posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.