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02/06/2021

John McGinnis on Presidents Changing Positions in Supreme Court Cases
Michael Ramsey

At Law & Liberty, John McGinnis: Should a New President Change Old SCOTUS Positions? From the introduction:

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.

Agreed.  The supposed disfavor of changing positions is part of the unrealistic and non-constitutional idea of the supposed apolitical continuity of the Justice Department across presidential administrations.  Of course, there's something to be said for continuity across administrations in ordinary day-to-day Justice Department litigation.  But in constitutional cases -- and in other high profile litigation -- the Justice Department is an extension of the President.  When Presidents change, the Justice Department changes.  That's as the Constitution designed it.

As Professor McGinnis says:

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.

Yes, and I would also say, "must be exercised in a manner consistent with the President's policy decisions."  Jefferson said that the Secretary of State is an instrument of the President, as much as a pen in the President's hand.  Same with the Solicitor General.  (And the Attorney General).