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Should a New President Change Old SCOTUS Positions?

The Biden administration has inherited a variety of legal positions from its predecessor. For instance, the Trump administration argued to the Supreme Court that much of the current Affordable Care Act is unconstitutional because it can no longer be classified as a tax now that flouting the individual mandate to buy insurance has no penalty.

Traditionally, a new Solicitor General’s office is reluctant to make changes to such positions. A debate has arisen, however, about whether the Biden administration should change its positions before the Supreme Court and other courts when it disagrees with the positions that the Trump administration took. While I doubtless will generally disagree with the substance of the Biden administration’s legal claims (the case of the Affordable Care Act is an exception), I believe that the administration may change the position of the United States in litigation to reflect the legal views of the current administration. Indeed, I would go further: If the President and his advisors believe that the previous position is wrong on the law, they have a constitutional obligation to change it.

The President has taken an oath to “preserve, protect and defend the Constitution of the United States,” and must “take Care that the Laws be faithfully executed.” His power to act in Court derives from his executive power, and he must comply with these obligations in exercising it. As a result, he must say what he believes the law to be.

It is true that the President does not himself directly make arguments in court, doing so instead through his attorneys and specifically through the Solicitor General at the Supreme Court. But the Solicitor General and other heads of litigating divisions are subordinate to the President and thus must take his direction. In the absence of that direction, they should try to figure out what is most consistent with the ideal version of the President’s views.

The Solicitor General’s position in the constitutional hierarchy is as easily defined as that of the Secretary of State. Like the Secretary, he is subordinate to the President, appointed by him, and serving at his pleasure. Because litigation on behalf of the United States is inherently an executive branch function, his authority and that of other executive branch lawyers is ultimately derived from the Constitution’s grant of executive power to the President and must be exercised in a manner consistent with the President’s obligations.

To be sure, his subordinates should consider their greater information and expertise in the areas in which they operate. Thus, the Secretary of State does not have to consult with the President on every aspect of foreign policy but should make decisions to reflect the general contours of the President’s views. Similarly, the Solicitor General has greater expertise than the President in the law, as do the heads of divisions at the Department of Justice. But that greater knowledge merely requires them to fill in the details of the President’s views and, in this case, of the President’s constitutional obligation to follow the law as he understands it.

The Court’s institutional amour propre may create a sense that it is the branch that has a special obligation to the Constitution. But the President has his own obligations.

Sometimes it is argued that the Solicitor General and other attorneys working on behalf of the United States have obligations to the Court that may preclude their changing positions to reflect the legal views of the administration. Like other litigants, the Solicitor General has professional obligations and must obey the rules that the Court has constitutional authority to promulgate. For example, the office must file briefs on time unless it receives an extension from the Court, and it must refrain from misstating the facts or law of a case. Since the office frequently appears before the Court, it has obvious incentives to carefully observe these rules to gain and maintain a reputation for scrupulousness. But there is no obligation to refrain from changing positions so long as it is clearly and respectfully stated with an explanation offered.

It is true that the justices have sometimes expressed irritation at the government changing positions in midstream. But justices’ irritation has no more bearing on the President’s and his subordinates’ obligations to take care that the law be faithfully executed than a president’s irritation with the Court should have on the justices’ obligation to decide cases on their own view of the law without fear or favor toward any litigant. If the Court wants to have a position represented, it can, as it has in the past, appoint an amicus to press it vigorously.

Moreover, if it becomes traditional for administrations to change positions that they think are wrong, the pique of the justices is likely to subside. In my view, it is due to an institutional amour propre—a sense that the Court is the branch that has a special obligation to the Constitution. But the President and his subordinates have their own independent obligations. Their position before the Court should reflect them.

The view that a new administration can and should change position at the Court does not require one to take a departmentalist perspective on the Constitution. Departmentalism is the notion that each of the three branches has a right to its own view of the Constitution. In a strong (albeit not the strongest) version of departmentalism, the President has no obligation to follow Supreme Court precedent, even if the administration must respect the decisions of the Court in decided cases. I have some sympathy with this position, which was forcefully stated by Abraham Lincoln and has been articulated by modern scholars. Mike Rappaport has recently raised questions about it, suggesting that an obligation of the executive branch to follow precedent might flow from the judicial power of Article III or the common law.

But even if the executive branch should respect Supreme Court precedent, each President and set of subordinates are entitled to their own view of that precedent. Supreme Court cases frequently turn on the difficult questions of which precedent to follow and how far to follow it. Moreover, there remain questions of first impression under statutes and even the Constitution. None of the material of law is self-interpreting, and the President’s obligations to the law require him and his subordinates to articulate those interpretations in areas of his executive responsibility, including positions taken in litigation.

Thus, President Biden’s Solicitor General can count on me to support him or her against process arguments that are sure to be made against changing positions. But unless the Biden administration proves better at legal interpretation than it has so far on policy formulation, the substance of these changes should generally elicit no more support from friends of the rule of law than the policy changes should receive from friends of liberty. But at least Biden’s Solicitor General will be setting a precedent for sounder law from administrations to come.

Reader Discussion

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on February 04, 2021 at 09:32:47 am

What's to say about Professor McGinnis' argument? It should be self-evident from reading Article II of the constitution that on matters of process and substance the Office of the Solicitor General and the Solicitor General are constitutionally obliged to carry out the policy and preferences of the president. Nothing to see there, really.

McGinnis' analysis also applies fully to the Department of Justice and the FBI, as well as to the Attorney General and the Director of the FBI, and it would have been nice to hear that from him during the 4 years of echo-chamber complaints from Democrats and their media allies that President Trump lacked authority over the investigative powers, legal policies and enforcement actions of the Attorney General and the FBI, complaints that were voiced loudly and incessantly and, on Capitol Hill, reiterated uniformly, as if those agencies and the persons the president placed in charge of them were constitutionally independent powers on the substance and process of making policy and enforcing law.

Finally, a note about McGinnis' confusing last paragraph, which I am sure does not say what he means. Reading it literally, the last paragraph means 1) that one should probably criticize the substantive changes made by Biden and his SG, while supporting their authority to make process changes, and 2) that "at least Biden’s Solicitor General will be setting a precedent for sounder law from administrations to come."

So, got it? We should support as "precedent for sounder law" the bad precedents of Biden and his SG, so long as the president has the authority to set those precedents, because we should support Biden's right to exercise that authority?

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Paladin
on February 04, 2021 at 09:35:58 am

“For instance, the Trump administration argued to the Supreme Court that much of the current Affordable Care Act is unconstitutional because it can no longer be classified as a tax now that flouting the individual mandate to buy insurance has no penalty.”

The Affordable Care Act was not unconstitutional because of the tax placed on those who choose not to purchase health insurance, equivalent to the price of health insurance. It was unconstitutional because it required health care insurance providers to peddle contraception, which is not life-affirming or life-sustaining, and in some cases destroys a human life, and thus is not health care to begin with, while placing an obscene fine, that violated the principle of Proportionality, central to The Eighth Amendment, on those who desired to purchase health insurance sans contraception coverage that any reasonable person could construe was an attempt to influence the intended recipient of said fine, into denying a tenet of their faith and/or morals or going without Health Insurance, which would obviously be a violation of The First Amendment as well.

For this reason, and this reason alone, most reasonable persons could assume that the purpose of the Contraception Mandate that was added to The Affordable Health Care Act by an Administration Agency, after The Health Care Act was passed and signed into Law, was an attempt by an Administration Agency to use “tax law”, to change the letter and spirit of the law, in regards to Religious Liberty, which is central to The First Amendment, and by placing an obscene fine that violates the Principle of Proportionality, which is central to The Eighth Amendment, an attempt to induce the recipient of said fine, into relinquishing their inherent Right to choose to purchase, condone, or support that which violates a tenet of their Faith and/or morals.

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N.D.
on February 04, 2021 at 13:29:17 pm

My apologies for my error. That should read:

For this reason, and this reason alone, most reasonable persons could assume that the purpose of the Contraception Mandate that was added to The Affordable Health Care Act by an Administration Agency, after The Health Care Act was passed and signed into Law, was an attempt by an Administration Agency to use “tax law”, to unconstitutionally change the letter and spirit of the law, in regards to Religious Liberty, which is central to The First Amendment, and by placing an obscene fine that violates the Principle of Proportionality, which is central to The Eighth Amendment, an attempt to induce the recipient of said fine, into relinquishing their inherent Right to choose not to purchase, condone, or support that which violates a tenet of their Faith and/or morals.

Godspeed!

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N.D.
on February 04, 2021 at 10:15:46 am

Agree with Paladin and the last paragraph. What are we to make of it?

Also this:

"While I doubtless will generally disagree with the substance of the Biden administration’s legal claims (the case of the Affordable Care Act is an exception)"

What? Is McGinnis NOW a supporter of the ACA? or is he a supporter of extreme "non-severability"
Please 'splain, yourself, Dear Professor.

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gabe
on February 04, 2021 at 10:47:31 am

Well, we did not have to wait long:

" The Supreme Court on Wednesday agreed to a request by the Biden administration to remove two immigration-related cases from its upcoming calendar because they were no longer necessary due to policy changes by the new administration.

In a brief order, the high court agreed to the request to remove the cases from its upcoming oral argument calendar."

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gabe
on February 04, 2021 at 11:34:56 am

Unity Biden is off to a great start on Obama's third term.
The risk is most dire with respect to DOJ failure to defend the US against destructive lawsuits and then entering into friendly "consent decrees" with bad actors which bind the nation to fund bad actors and support bad policies and set new law that binds those not a party to the 'settled" litigation. It's a primary modus operandi of the Enviro-Nazis, and will be used to establish and entrench their Climate Change" dirigisme.

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Paladin
on February 04, 2021 at 12:12:20 pm

McGinnis and Dix make a measured, thoughtful, and persuasive case. I'm a little surprised it needs to be made at all. Take a stronger example. If an administration's position on a case before the Court turned out to be based on incorrect facts, wouldn't they change their position when new and indisputable facts came to light? Surely they would not be required to continue arguing a position the new to be in error? The reference to Abraham Lincoln puzzles me. I read the speech, and as I understand it, Lincoln explicitly says he is not resisting the Court's decision. He does not propose taking action contrary to it. The issue rather is its status as precedent. He argues (I would say "demonstrates") that the decision is based on errors and bad reasoning and concludes that it should be regarded as at best a weak precedent and that he and those who agree with him are free to argue strenuously against it and bend every effort to persuade the Court to change its mind. To suggest, as McGinnis and Dix seem to, that Lincoln is arguing that "the President has no obligation to follow Supreme Court precedent" seems to me incorrect. Lincoln argues that the President has no obligation to treat the decision as "settled" precedent (his word) but not that the President may act contrary to the decision itself. Leaving aside this subordinate issue, the essay's main argument seems to me completely persuasive.

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Donald Marshall
on February 04, 2021 at 12:15:46 pm

“Lincoln argues that the President has no obligation to treat the decision as "settled" precedent (his word) but not that the President may act contrary to the decision itself. Leaving aside this subordinate issue, the essay's main argument seems to me completely persuasive.”

True.

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N.D.
on February 04, 2021 at 12:59:06 pm

True., regarding Lincoln’s view on “settled” precedent.
But then, in order to change “settled”, precedent regarding Law, one needs to persuasively assess and illuminate the substantive error and convince the Court that the precedent set was unconstitutional, which I suppose, one could argue, changes the Good Professor’s main argument, substantially.

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N.D.

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.