The Biden administration has inherited various legal positions from its predecessor. For example, the Trump administration argued to the Supreme Court that much of the current Affordable Care Act was unconstitutional because it could no longer be classified as a tax, as disregarding the individual mandate to take out insurance would no longer be a penalty.
Traditionally, a new attorney general’s office is reluctant to change such positions. However, a debate has arisen over whether the Biden administration should change its positions in the Supreme Court and other courts if it disagrees with the Trump administration’s positions. While I no doubt generally disagree with the content of the Biden government’s legal claims (the Affordable Care Act case is an exception), I believe the government may alter the United States’ position in litigation to reflect the legal views of the Biden government Government to reflect current administration. In fact, I would go further: if the President and his advisors believe that the previous position on the law is wrong, they have a constitutional obligation to change it.
The president has taken an oath “to uphold, protect and defend the United States Constitution” and “must see that the law is faithfully enforced”. His authority to act in court arises from his executive power and he must comply with these obligations in the exercise. As a result, he has to say what he thinks is the law.
It is correct that the President himself does not argue directly in court, but rather through his lawyers and, in particular, through the Attorney General at the Supreme Court. However, the Attorney General and other heads of litigation departments report to the President and must therefore take his direction. In the absence of this direction, they should try to find out what best fits the ideal version of the President’s views.
The position of the attorney general in the constitutional hierarchy is as easy to define as that of the foreign minister. Like the secretary, he reports to the president he has appointed and serves him as he pleases. Since litigation on behalf of the United States is by nature a function of the executive, its authority and that of other lawyers in the executive ultimately derive from the constitutional conferral of executive power on the president and must be exercised in a manner that is consistent with the obligations of the United States Presidents corresponds.
Of course, his subordinates should take into account their broader information and expertise in the areas in which they operate. Therefore, the Foreign Minister need not consult the President on all aspects of foreign policy, but should make decisions that reflect the general outlines of the President’s views. Likewise, the Attorney General has more legal expertise than the President, as do the Department heads of the Department of Justice. However, that greater knowledge only requires that they fill in the details of the President’s views and, in this case, the President’s constitutional obligation to obey the law as he understands it.
The Court’s institutional amour propre may create the impression that the branch has a special obligation to the constitution. But the president has his own obligations.
It is sometimes argued that the attorney general and other attorneys working on behalf of the United States have obligations to the court that may preclude their changing position to reflect the administration’s legal views. Like other legal disputes, the Attorney General has professional obligations and must comply with the rules that the Court of Justice is constitutionally empowered to deliver. For example, the office must file pleadings in a timely manner unless it receives an extension from the court and it cannot misrepresent the law or the law of a case. As the Office appears frequently before the Court, there is an obvious incentive to carefully follow these rules in order to build and maintain a reputation for unscrupulousness. However, there is no obligation to refrain from changing positions as long as this is clearly and respectfully explained in a statement.
It is true that the judges have been irritated at times that the government has changed its positions in the middle stream. However, the annoyance of judges does not affect the duty of the president and his subordinates to ensure that the law is properly enforced more than a president’s annoyance to the court of fear of judges’ obligation to rule cases at their own discretion or favor with a litigant. As in the past, if the court wishes to take a position, it can appoint an amicus to vigorously press it.
If it becomes traditional for administrations to change positions they deem wrong, the judges’ spades will likely wear off. In my view, it is due to an institutional amour propre – the feeling that the Court of Justice is the branch that has a special obligation to the Constitution. However, the President and his subordinates have their own independent obligations. Your position before the Court should reflect it.
The view that a new administration can and should change its position at the Court of Justice does not require a departmental view of the constitution. Departmentalism is the idea that each of the three branches has a right to its own view of the constitution. In a strong (if not the strongest) version of the departmental system, the president is not required to follow the Supreme Court precedent, even if the administration has to respect the decisions of the court in decided cases. I have some understanding of this position, which was emphatically formulated by Abraham Lincoln and articulated by modern scholars. Mike Rappaport recently raised questions about this, suggesting that an executive’s obligation to follow precedent could result from judicial power under Article III or common law.
But even if the executive should respect the precedent set by the Supreme Court, each president and group of subordinates are entitled to their own views on that precedent. The difficult questions of what precedents to follow and how far to follow are often raised in Supreme Court cases. In addition, questions of first impressions about the law and even the constitution remain open. None of the legal materials are self-explanatory, and the President’s legal obligations require that he and his subordinates articulate these interpretations in areas of his executive responsibility, including positions in litigation.
Therefore, President Biden’s attorney general can rely on me to support him against trial arguments that are sure to be brought against a change of position. But unless the Biden government proves to be better at legal interpretation than it has been at policy formulation, the content of these changes should generally not attract more support from friends of the rule of law than policy changes should have from friends of freedom. But at least Biden’s attorney general will set a precedent for a more solid law of the coming administrations.