Should a New President Change Old SCOTUS Positions? – Law & Liberty

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.

via lawliberty.org

I wish I had taken the chance to work with (and perhaps under) John McGinnis at OLC. I would have been a terrible young lawyer, but I would have learned a great deal. This essay is typically acute.