CiteNow!Download PDF

Document Outline
Immigration Cases Scuttled
Changed Views in Other Cases

When a new president moves into the White House, the federal agencies in charge of national security and domestic welfare quickly change policies in line with the political views of the new chief executive, but not the solicitor general’s office. The solicitor general’s office, the arm of the Justice Department that represents the government at the Supreme Court, prides itself on providing the justices with independent, nonpartisan legal advice based on law not politics and aimed at best serving the government’s long-term interests. For that reason, the solicitor general (SG) changes legal positions with a new president in the White House only rarely. But the post-Trump transition in the first few months of 2021 has been different, marked by at least nine changes of position by the solicitor general’s office in new filings in cases pending at the Court during the 2020 term. In this Court Report, court expert Kenneth Jost discusses the cases on which the incoming administration has chosen to change course on.

Most significantly perhaps, the acting solicitor general, Elizabeth Prelogar, filed a supplemental brief on February 10 in a pending case, California v. Texas , that rejected the Trump administration’s position in favor of striking down, in its entirety, the Affordable Care Act. The Trump administration took that position by arguing that Congress’s decision to repeal the penalty under the so-called individual mandate eliminated the constitutional basis for the law.

In the new brief, the Biden administration argued that even if the Court found the revised individual mandate unconstitutional, the justices should use the so-called severability doctrine to strike down only that provision and leave the rest of the law standing. The justices still had the case under advisement as of mid-March following oral arguments in November. Given that posture, the SG’s office suggested no need for an additional round of legal briefs from the other parties or new oral arguments.

The government’s other changes of position came in lesser cases, including a 180-degree reversal in a pending criminal case due to have been argued on April 20. The issue in Terry v. United States was a plea by a convicted drug offender for a reduced sentence under provisions of the 2020 drug sentence reform law known as the First Step Act. In lower courts, the government had argued successfully that Tarahrick Terry was ineligible for the reduced sentence.

In a new filing on March 15, however, the SG’s office notified the Court that after reconsideration, the Department of Justice had concluded that Terry was eligible under the law for a reduced sentence. On that basis, Prelogar explained that the case might be moot or that the government might want to appoint a lawyer to defend the lower court’s judgment in the case. A few days later, the Court instead removed Terry’s case from the April calendar for oral arguments.

The number of changed position from the SG’s office in the first months of the Biden presidency appears to be unusual based on the experiences of two veteran Supreme Court advocates who headed the SG’s office on an interim basis during two earlier presidential transitions. In a joint appearance at Georgetown Law School in January, Neal Katyal, who served as interim acting solicitor general during the Bush/Obama transition in 2009, and Paul Clement, who was interim acting solicitor general during the Clinton/Bush transition in 2001 both stressed that changes in position were disfavored in large part because reversals could reduce the office’s credibility with their sole audience: the nine justices themselves. For his part, Katyal recalled that during his time the office reversed no positions that the office had taken in cases pending before the Court. “We didn’t change positions in a single case, not one,” Katyal remarked.

As one example, Katyal noted that after Elena Kagan was confirmed as solicitor general, she reaffirmed the office’s previous position defending the military’s so-called “don’t ask, don’t tell policy” that prohibited openly gay or lesbian service members. Katyal acknowledged the policy disagreements within the administration on the issue, but Kagan’s stance on the issue appeared to confirm her promise before her confirmation as solicitor general to defend statutes challenged in court if there was “a colorable basis” to do so.

By contrast, the SG’s office changed positions in one high-profile case on Clement’s watch. In lower courts, the Clinton administration had defended the University of Michigan’s limited use of race in undergraduate admissions and law school admissions. President Bush nominated Theodore Olson, a leading legal conservative, as solicitor general; and he took office after Senate confirmation in June 2001.

Clement, who served under Olson as principal deputy, recalled in remarks at the Georgetown event that the government changed positions in the Michigan case under Olson and opposed both the undergraduate and law school admissions policies. Olson filed the briefs at the Supreme Court on January 16, 2003, the day after Bush had announced the administration’s opposition to the policies in a press conference at the White House.

In his remarks at the Georgetown event, Clement stressed that the SG’s office enjoys a good measure of independence but not “complete independence.” He noted, for example, that the solicitor general works for the attorney general, who works for the president. On that basis, Clement remarked that when he later served as confirmed solicitor general, he was “open to the president saying in any particular case that this is the position of the United States.”

Immigration Cases Scuttled

In the 2021 Trump/Biden transition, the solicitor general’s office has effectively scuttled a slew of immigration-related cases in which the Trump administration was seeking to reinstate policies that lower courts had blocked. Those cases involved, among other issues, funding for the southern border wall, rules for asylum applicants, and admission rules for immigrants. Lower federal courts had blocked the Trump administration initiatives as going beyond any discretion allowed the executive branch under immigration law.

The border wall case, filed as Trump v. Sierra Club and now renamed Biden v. Sierra Club , stemmed from the Trump administration’s decision to divert Defense Department funds to construction of the wall despite Congress’s refusal to appropriate funds for that purpose. The case had been scheduled for oral argument on February 22 but was removed from the calendar after the solicitor general’s office raised no objection to extending the deadline for briefs into May, thus effectively pushing the case into the 2021 term.

The SG’s office has also dropped the Trump administration’s effort to reinstate its so-called “stay in Mexico” policy, requiring asylum applicants to remain on the other side of the border without coming into the United States to process their applications. The case, formerly know as Wolf v. Innovation Law Lab and now brought in the name of the new DHS secretary, Mayorkas v. Innovation Law Lab , was also removed from the February calendar on a motion filed by the SG’s office on February 1.

The Biden administration has also dropped the Trump administration’s effort to adopt a restrictive “public charge” rule limiting admission of immigrants likely to use governmental safety net programs if admitted. The federal appeals court in New York City blocked the proposed rule. The justices agreed to hear the case, known as Department of Homeland Security v. New York City , in an order issued on February 22, but DHS and the city agreed in a joint stipulation on March 9 to dismiss the case.

The new administration has also withdrawn the Trump administration’s effort to deny some federal funds from so-called sanctuary cities that refuse to assist federal immigration officers in apprehending undocumented aliens. The Trump administration was litigating the issue in cases against two cities: San Francisco and New York City. The federal appeals court in California had blocked the Trump administration policy in the San Francisco case, but the federal appeals court in New York had ruled for the government in the other case.

The appeals were pending at the Supreme Court when the government and the two cities submitted joint stipulations on March 4 to dismiss the cases: Wilkinson v. San Francisco and New York City v. Department of Justice .

Changed Views in Other Cases

The solicitor general’s office has also moved to postpone consideration of the Trump administration’s effort to authorize states to adopt pilot projects imposing work requirements on Medicaid recipients. The justices had granted certiorari in the case, Cochran v. Grehsm, on December 4 and scheduled oral arguments in the March calendar. The government was appealing a decision by the U.S. Court of Appeals for the Eighth Circuit that blocked the state of Arkansas from instituting what the state called “community engagement” requirements for Medicaid recipients.

The justices agreed on December 4 to hear the case and had set the case for oral arguments in the March calendar. The solicitor general’s office filed a motion on February 22, however, to put the case on hold: the motion asked the Court to set aside the Eighth Circuit’s decision, to remand the case to that court, to remove the case from the March calendar, and to hold further briefing in abeyance. The state opposed that motion by arguing that the Court needed to determine whether the Department of Health and Human Services had any authority under the Medicaid law to allow states to adopt such rules. In the meantime, several advocacy groups filed briefs that, in effect, supported the Eighth Circuit’s decision against allowing states leeway to adopt such rules.

The Court responded on March 11 by removing the case from the March calendar. Several other cases raising the issue are also in the pipeline, awaiting action by the justices. As of late March, the future course of the litigation is at best uncertain.

The solicitor general’s office also changed positions in two other cases, in which the government was appearing as friend of the court rather than as a party. In the more recent of the changes, the government shifted its position in a case known as Cedar Point Nursery v. Hassan testing a California regulation requiring orchards and agricultural workplaces to allow union organizers access to their properties to communicate with workers. The nurseries contend that the regulation, as upheld by a federal appeals court, amounts to an unconstitutional intrusion on property rights.

The Trump administration had filed an amicus brief in the case on January 7 supporting the nurseries. But the solicitor general’s office notified the Court by letter on February 12 that the Department of Justice had “reconsidered the government’s position . . following the change in Administration.” The letter, signed by Prelogar as acting solicitor general, went on in effect to argue for upholding the regulation. “The United States is now of the view that the California regulation does not effect a per se taking under this Court’s precedents,” Prelogar wrote.

The case was scheduled for oral arguments on March 22. The government often asks to participate in oral arguments in cases in which it files an amicus brief, but it made no such request in this case.

The solicitor general’s office made a more subtle shift in an earlier case testing two Arizona election laws challenged by voting rights advocates. The Trump administration had filed an amicus brief in the case Brnovich v. Democratic National Committee on December 7 in support of the challenged laws. But the solicitor general’s office notified the Court in a letter dated February 16 that the Department of Justice had “undertaken a re-examination of the issues in the case[ ]” and “does not adhere to the framework for application of [the Voting Rights Act’;s section 2] in vote-denial cases set for the in the brief.”

The letter in the Arizona case was signed by Edwin Kneedler, a deputy solicitor general, who noted that “the acting solicitor general” was recused in the case. The letter did not specify the precise disagreement with the argument in the previous brief, but reaffirmed the previous position in support of the two Arizona laws at issue in the case. The Court heard arguments in the case on March 2, without participation from the solicitor general’s office.

The government has an influential voice at the Court, of course, but its views in these various cases may or may not be determinative as to the eventual outcomes by the end of the current term in late June. In that regard, Katyal suggested in the law school event that the SG’s office has a special burden after changing positions in a case. Changing positions to adopt a losing stance, he seemed to say, would be something of an embarrassment for the office.


Document Citation
Kenneth Jost, A Bumpy Transition for Solicitor General’s Office, CQ Supreme Court Collection (2021),
Document ID: cqelsc-1619-115406-2979004
Document URL: