When the Government Changes Sides in Ongoing Litigation

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Nick Marr:  Welcome everyone to this special Federalist Society Friday afternoon virtual discussion. Today we're covering the topic of Solicitor General position changes. The title of this event is "When the Government Changes Sides in Ongoing Litigation."

 

      I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society. As always, please note that expressions of opinion on today's call -- We have a panel lined up. I'm just going to introduce our moderator and she'll take it from there.

 

      We're very pleased to be joined this afternoon to moderate this discussion by Ms. Beth Williams. Beth Williams served as Assistant Attorney General for the Office of Legal Policy at the U.S. DOJ, the Department of Justice from August 2017 to December 2020. In that role, she served as the Primary Policy Advisor to the Attorney General and the Deputy Attorney General, and as the Chief Regulatory Office for the Department. Ms. Williams also led the judicial nomination process for the Department, assisting in the selection and confirmation of more than 230 Article III judges.

 

      Ms. Williams graduated from Harvard College and Harvard Law School, where she served on the Harvard Journal of Public Law and Policy. With that, Ms. Williams, thanks very much for being with us. The floor is yours.

 

Hon. Beth A. Williams:  That's great. Thank you so much, Nick. And thank you to The Federalist Society for hosting this fantastic panel. And thank you, especially, to our wonderful panelists who have agreed to be with us today.

 

      So what we're going to do is, I'm going to give some introductions. And then each panelist will speak for about five minutes on their reflections about the changing litigation positions in the Solicitor General's office. And then we'll have a moderated discussion.

 

      Throughout, as you think about questions, please feel free to write them into the chat. And then toward the end, we will take those questions and have the panelists respond to them.

 

      So to start us off, I want to introduce to you Hashim Mooppan, a former clerk to Justice Antonin Scalia and a graduate of Harvard Law School. Mr. Mooppan has served in the DOJ as counselor to the Solicitor General and Deputy Assistant Attorney General for Civil Appellate.

 

      Mr. Mooppan has personally argued four cases in the Supreme Court and dozens more in the lower federal courts. During his DOJ service, Mr. Mooppan supervised the most significant appellate litigation in which the federal government participated, with a particular focus on separation of powers issues, constitutional challenges, and APA claims. Before his DOJ service, Mr. Mooppan was an attorney at Jones Day.

 

      Next we have Beth Brinkmann. Ms. Brinkmann is Co-Chair of the Appellate and Supreme Court Litigation Group at Covington & Burling. She served most recently in government from 2009 to 2017 as Deputy Assistant Attorney General in the DOJ's Civil Division, where she presented oral arguments in several high-profile cases, including the successful defense of the constitutionality of the Affordable Care Act and the government's victory in federal immigration preemption litigation.

 

      Prior to that, Ms. Brinkmann served for eight years as Assistant to the Solicitor General. A graduate of Yale Law School and a former clerk to Justice Harry Blackmun, Ms. Brinkmann has argued 25 cases before the U.S. Supreme Court.

 

      And last, but not least, we have Gene Hamilton. Mr. Hamilton earned his law degree from Washington and Lee School of Law Magna Cum Laude. He most recently served as Counselor to the Attorney General from 2017 to 2021 where he provided legal advice, counsel, and strategic guidance to Attorney General Jeff Session, Attorney General William Barr, Acting Attorney General Jeff Rosen, and others.

 

      During his time at DOJ, Mr. Hamilton advised on and participated in litigation, regulatory actions, and policy making on high-priority issues for the administration.

 

      Thank you all so much for being here. And with that, I will turn it over to Hash to kick us off.

 

Hashim M. Mooppan:  Thanks, Beth. So I think the way of thinking about this is, there isn't any one right answer. It's not like the government should never change positions. And it's not like the government should change positions willy-nilly. So what I think would be helpful is, I'll go through some of the factors that I think are relevant. And then I'll talk about my view of what has happened, both in the last few months, and the equivalent period during the Trump administration.

 

      So in terms of factors, I think the first thing to focus on is the type of case. Is it a case where the government is changing positions because the underlying agency has changed its actions? Or is the government just changing positions in ongoing litigation?

 

      In ongoing litigation, without an underlying agency action change, I think there are basically four factors that I think are pretty relevant to consider. One is how recently the government had taken a different position. The second is at what level of court has the government taken a different position? Was it in a lower court or was it at the same level of court, or higher? The third is the timing of the change. Is the government making the change early enough in the litigation that the courts and the parties can respond, or is it happening at the last minute and sort of altering the course of the litigation? And then the fourth is the nature of the issue. Are these the sort of issues -- Are these significant, important issues? Is there a view that the prior decision was not just wrong but egregiously wrong?

 

      I think all of those factors are things that the government should weigh. Because they all ultimately go to the credibility of the flipping position and the respect for the litigation process, and the importance of the government continuing to speak with one voice.

 

      I think the analysis is a little bit different when the impetus of the change is that the underlying agency action that the government is defending has changed. Obviously, if the government, as a policy matter, makes a change in what the agency is doing on the ground, then the government is going to change its litigation defense.

 

      But in those circumstances, I think the pretty significant factor is, how does the government resolve the past litigation? Does it dispose of that past litigation in a way that preserves the government's overall discretion by ensuring insuring that prior judgments that have been entered get vacated so that there'll be litigation over the new agency action, but you don't freeze and lock in the judgments that were issued against the past agency action, and therefore constrain the government's discretion going forward.

 

      So those are, I think, the factors that I would generally consider. And now let me sort of talk through how I think that played out in the beginning of the Trump administration, as opposed to the beginning of the Biden administration.

 

      During the Trump administration, in the first year, it was fairly widely reported, and accurately, that there were four major changes that the Solicitor General's office made in the Epic case, the Janus case, the Husted case, and the Lucia case. And I think the best way of thinking about them, for purposes of this, is the most salient factor was, in none of those cases did the government change the position of what the merits brief had said in that very case. Every one of those cases were cases where the government changed positions from either what had been said in prior cases or in lower courts.

 

      And one other fairly relevant factor is, in all four of those cases, the Court ultimately agreed with the changed position. So if the government hadn't changed positions, it would have lost four more cases.

 

      To my recollection, there weren't any cases where the administration -- the underlying agency action changed, so that second bucket of category cases that I talked about wasn't really in play during the beginning of the Trump administration.

 

      So recently, with respect to the Biden administration, there have been at least 10 agency changes. And I think five of them fall into the first category of changes in litigation position. And five of them turned into the category of changes in agency action.

 

      What seems notable to me about the litigation position changes is that three of them happened after a merits brief had been filed in the Supreme Court, and the Solicitor General's office notified the Court, basically, but just by the letter, that it was no longer taking that position, providing little to no reasoning for why. So that is, I think, fairly remarkable and fairly unusual. It certainly didn't happen during the Trump administration. I don't recall it happening in prior administrations. But I'd be curious if Beth Brinkmann has any recollection of that happening.

 

      And then in the second category of agency actions that changed, there have been five of those. Three of them happened pretty normally. Things like return to Mexico, and the border wall, that underlying agency, or the President, himself, decides to cease engaging in the conduct. And then the government basically told the Supreme Court to put the cases in abeyance and they're trying to work out what will happen. That's a fairly standard thing.

 

      But there have been two that are much more unusual, in both the Public Charge litigation, and the Title 10 litigation. What the government has done is just dismiss all their cert petitions and all letter of appeals. And what that has had the effect of doing is locking in final judgments against those agency actions, even though the government had won a lot of that litigation. And including gotten a stay from the Supreme Court, itself. And those -- that is very unusual. I'm not aware of that really ever happening. And it has pretty significant consequences, which I think we'll discuss in greater detail later. But for now, I'll turn it over to Beth Brinkmann.

 

Beth Brinkmann:  Thanks so much, Hash. And thanks very much for having me. This is a really interesting topic to discuss. It's been discussed for many years now and it's a great time to think about it again. Like Hash, I was thinking about it in terms of kind of what would be the factors that would really affect the analysis and the decision making. And I think he's pointed out some very good factors to consider.

 

      I'd maybe change it a little bit between whether it's a litigating position or a policy position. I think that's one of the first factors, whether it's a change in court, as an advocate before the court and particularly, the Supreme Court and how the Department of Justice is interpreting the law, as opposed to an agency taking action and then the litigation following from that. And I do think some more of the actions that Hash was mentioning, and the recent Biden administration actions had to do with an executive order, for example, directing the agency to reconsider it.

 

      So those -- that's almost all of the ones that the Biden administration's done. In one course or another, the policy has changed, they're reconsidering it. And part of that interest is not litigating in something that's no longer going to have legal relevance.

 

      That's very different than when it's a position about a statute. So that's a second kind of consideration is that a position about the legal interpretation of a federal statute, or about a rule. Because, of course, a rule the Executive Branch can change those and there's much more authority there.

 

      Changing the position on the constitutionality of a federal statute is a particularly high bar, very unusual. And so I would point to one of the letters that Hash sent as being the Affordable Care Act. And really, I think that's just unusual because the Biden administration is simply reverting to an earlier defense of the constitutionality of the statute. And the Trump administration's change on that had been very dramatic, to have changed that. And as I'm sure most of you know, it ended up that different states were litigating the constitutionality of that federal statute, in essence.

 

      So in addition to it being a question of whether it's a statute or rule, or whether it's a litigating position or really a policy position that's being changed or reconsidered, the other angle to look at, really, are the factors that have to do with the Solicitor General's office. The Solicitor General is charged by federal statute with determining the position of the United States in the Supreme Court.

 

      Of course the Solicitor General confers with the Attorney General, and in some instances even the President, on that. But one thing that's important to understand is, often this issue is talked about in terms of stare decisis in the Solicitor General's office. But it's very different from a court deciding about stare decisis and when do we adhere to precedent. Because of course, the Solicitor General is only making a decision as an advocate what position to argue before a court. It doesn't bind the conduct of citizens.

 

      Whereas courts deciding whether or not to revisit precedent or whether they're bound by stare decisis involves a lot more significant concerns about stability of the law, predictability, reliance on organizing your behavior to comply with the law. So in that hand, it's not the same as reconsidering precedent by a court, although sometimes that's a language that's spoken.

 

      The other thing I would say, of course is, not only is the Solicitor General an advocate, a political appointee, not a judge, not a life tenure. And the other rule for the Solicitor General is very important as an advocate to the Supreme Court is assisting the Supreme Court. Because of course, the foundational undergirding of our adversary position is so both sides are robustly presented to the Court.

 

      The Solicitor General's office takes that very seriously. And oftentimes will even point out in a brief that, although they're not changing position, there are countervailing considerations. Oftentimes, within the government there's disagreement. And that's one of the things that the Solicitor General has to figure out how to resolve or present to the Court.

 

      On the other hand, though, there are very important institutional interests in the Solicitor General's office about maintaining consistency. And it really goes to the long-term institutional interests of the Court. Former Solicitor Generals, Paul Clement and Elena Kagan, two of the most brilliant minds to have been in that position, have talked about this in recent times. And really emphasized how during their tenures it was a very high presumption that a Solicitor General would not change positions.

 

      And institutionally, one of those reasons is because that position, the prior position, has been developed by very committed career and political attorneys there with deep analysis. And you don't overturn that lightly.

 

      Also, they're generally cases that involve really hard questions. That's why it's come to this issue about what the actual position is that should be taken. And then there's also this concern if the government changes positions too much, whether that will affect their credibility with the court.

 

      So one last thing I just want to focus on that I think is so key to those institutional interests is process. The Department of Justice has an extensive process for determining the position that the Solicitor General takes in any case. For an appeal, not just in the Supreme Court, there are memoranda that are written by all of the attorneys at the trial level, the appellate level. Views are solicited from various agencies. And not just the agency whose decision might be in question in the case, but other agencies that would be affected by the same action.

 

      That process is really key. And I think in one example, although it was in the lower courts, the one time the Obama administration declined to defend a constitutionality statute was the Defense of Marriage Act, and that was an extensive process. I actually was recused from it, but I was aware of what was going on. And that process is just something that helps the government. In fact, it improves their position in the Supreme Court because it helps them strengthen their arguments in any case by going through that analysis. But that process is really important.

 

      And connected to that, I would just also highlight how the branches work together. Congress has passed a statute, 28 U.S.C. § 530(d) that requires the Attorney General to notify Congress when it's not defending the constitutionality of a statute. That's how significant that determination is. And again, I distinguish that from determinations where policy has changed, or rules are changing. But when you're talking about the constitutionality of a federal statute, the Attorney General has to send a letter to Congress, and for good reason. Because then Congress can come in and defend the constitutionality of the statute itself.

 

      And in the Defense of Marriage Act case, what happened is the Attorney General, I think, took a very principled position. It kind of goes to what Hash was saying about how litigation proceeds once there's a determination to change positions. And there, the President said, we're not going to defend the constitutionality of this statute anymore because we think it's unconstitutional under the heightened scrutiny that the law now has suggested applies as it's developed. But we will continue to enforce it in the meantime. Again, allowing the adversary system to play out by someone else coming in and being appointed to defend the constitutionality of it.

 

      So those are all some of the institutional concerns and factors that I think layer on top of the factors that Hash pointed out and go into this determination by the government about when to change positions. I'm going to turn it over to Gene now.

 

Gene P. Hamilton:  Thank you, Beth. And thanks everyone for being here and for your thoughts. As I found myself doing so many times over the last four years, I'm sitting here listening to all of the points that have made, in particular by Hash, and I'm agreeing with nearly all of them. And I don't want to sound like a broken record.

 

      But so many of the factors that he went through and discussed I think are very, very important. In my mind, coming at this from somewhat of a legal policy, thinking about what are the real-world implications of some of these changes, I like to think about the distinction between a situation where the federal government's actions, in and of themselves, are at issue in the litigation, as opposed to some of the cases where the Solicitor General's office has been asked for their views by the Court.

 

      And so it's different parties, different action at issue. And certainly that's an important thing for the Solicitor General's office to participate in. There's only one executive at a time. Elections have consequences. And so in those cases, switching positions is something that I find, more or less, to be, okay well that's just the way that it's going to work.

 

      But when there is agency action at issue, or there is a federal statute that's at issue in a case, and the Solicitor General's office is coming through and changing positions, especially in front of the Supreme Court, I think that's fairly remarkable and should be a very rare instance where that happens. And just thinking about a couple of the cases that were before the Court, or that currently are, just to illustrate.

 

      The Innovation Law Lab case, which is the remain in Mexico / MPP case, obviously so far all that we've seen is a request to hold a case in abeyance pending a further review of the underlying policy by the Biden administration. But what's at issue in that case is a Ninth Circuit decision that found that the underlying statutory authority for the program, in and of itself, didn't authorize the program in the way that it was operated. And we had 70,000 something people, maybe 60,000, who were subjected to the process.

 

      There are going to be all kinds of things to think about in terms of, not only freezing the government's position forever and locking in future administrations on the interpretation of a statute without actually undergoing any analysis internal to DOJ that would say that, oh the statute totally didn't authorize that conduct, versus what actually happens with the 60 or 70,000 cases that went through the system, or that are currently pending?

 

      There is going to be a lot of remedial work that's going to have to be done down the road if, in fact, they completely abandon the case and they proceed with a course of action, like they've done in a couple of these other cases.

 

      And so, for an example, the Wilkinson v. San Francisco, or formerly Barber v. San Francisco, that was the sanctuary city funding. It's my recollection that we filed a cert petition and it was granted based on this joint dismissal letter that was submitted, it was wiped off of the Court's docket in a day.

 

      The Title 10 case, I think, hasn't yet suffered that consequence. I think that we had a few states who got involved or are trying to get involved in or engaged in some arguments on paper back and forth amongst a number of different parties about what should happen with that case.

 

      So I think that what happens though, big picture, when the Solicitor General's office undertakes a course of action where they're reversing course on big cases like those, I think the real downstream consequences, what that can do is that can encourage some of this law-fare. Some of this litigation warfare that we have seen in particular over the last four years where you were rewarding, in essence, a rush to find whatever district court judge you think is gonna be most suitable to rule in your favor in the best circuit possible. And to try to time things strategically and wait things out when things are looking like there might be a change of administration. What's going to happen here?

 

      And so I think it's something that has to be done. It's an analysis that has to be undertaken very carefully. It's something that there's a lot of consequences that Beth and Hash have talked through and articulated so much better than I ever could. But I think that there are some real, real serious problems that we have seen, I think, from a practical standpoint where some of the things that have been done just over the last few months that I think bear further thought.

 

Hon. Beth A. Williams:  Well, that's great. Thank you all of you for those thoughts. Just a reminder to everyone who's watching. If you have questions, please put them in the chat and we'll take them as they come up.

 

      But to start off, a recent Bloomberg article reported that the Biden administration is on track to reverse the government's position in more cases before the Supreme Court than the Justice Department did during the first full high court term of President Trump's presidency. And of course, as we know, the Biden administration hasn't yet even gotten a full term because they just started in January and the Court's term obviously started in October.

 

      And so my question for all of you is, is that headline -- does it seem like a bigger deal than it actually is?  I think some people might say, well, because the Trump administration changed so many positions themselves, this is just reverting back to the mean. And some other people might think that this is a real shift in just given the number. So I'll open it to you for your thoughts on that.

 

Hashim M. Mooppan:  So look, I think the focus on the number by itself is not very helpful for a lot of reasons that both Beth and I said. I think you really have to look at what they're doing and the way in which they're doing it. And that's where I think it's actually much more surprising. So as I said, I think there are about 10 changes, five of which fall into the changing litigation positions, five of which fall into the category of changed agency actions.

 

      What I think is really much more remarkable than the number is the nature of what has happened. So I think that's the point on the ACA case. The ACA case seems fairly sui generis. But some of the other changes are really pretty remarkable.

 

      So in both VR -- the Voting Rights case Brnovich and Cedar Point, those are marriage cases where the Trump administration filed a full-blown merits brief. And the DOJ flipped their position by filing a letter after the briefing was concluded. In one case, the Brnovich case, the Court -- the government didn't even say what it was disagreeing with. They just said there are aspects of the brief we don't agree with.

 

      And in Cedar Point, they said they disagreed and basically agreed with the Ninth Circuit. And didn't really have any explanation of why the stuff that was in the brief that the government filed was wrong.

 

      Perhaps the most remarkable of these bunch is the Terry case, which is a fair sentencing case, where the government had opposed cert, cert was granted. The period for the top-side -- the criminal defendant's brief was filed, and then on the day that the government's response brief was due, the government filed a letter that just said, actually we agree with the plaintiff.

 

      So yet again, you have a situation where the government hasn't explained any of its reasoning. And here, they've done it at the absolute last minute, which actually complicated the briefing and argument of the case. Because at that point, the Court had to appoint an amicus. They had to reschedule the argument. And it's very surprising. Because you would think that if the government was going to flip positions, they would have done it when the brief was -- the top side briefs were due. So it makes it seem almost like, at the very last minute, the SG's office was told that they couldn't file the brief in support of the prosecution.

 

      So I think it's the structure of what's happening that is more surprising rather than the numbers. Relatedly, on the agency changes, I think that what's really remarkable are the Title 10 and Public Charge changes. Where it's not just the agency that changed their action. In fact, in neither circumstances they agency actually changed their position. It's that the government just dismissed their cert petitions and their appeals. And that has two very significant consequences.

 

      The first is, it means that the agency doesn't actually have to go through notes and comment rulemaking to rescind the rule. They were able to just acquiesce in the final judgment of the district court vacating it. So it's a huge end run around the APA. And then the second is, it locks in the district court ruling, so in a future administration, if they want to go back to this, they've got a final judgment saying it's illegal. Even though the Supreme Court had said that the government was likely to win on the Public Charge because they granted a stay. So that's what seems very, very surprising.

 

      To my recollection, during both the Trump administration and the Obama administration, I don't recall the government ever doing that, of just acquiescing in final judgments against agency rules, even though there was active litigation and that's more likely to prevail on.

 

      The normal way to handle that situation is to wait for the agency to actually go through notice and comment rulemaking, promulgate a new rule, and then say the final judgments against the old rule should be vacated as moot. That preserves the status quo and the freedom of the Executive Branch, institutionally, over the long-term.

 

      So it's those sort of -- the way they're acting is what's surprising to me. Not the number.

 

Beth Brinkmann:  No, but we need to look, I think. I think that that headline oversimplifies it. I think we need to look at the fact that, in those situations, for example, there have been presidential orders that Title 10 should reconsider the rule. And part of what's really important here is the separation of powers and the jurisdiction of the Supreme Court.

 

      Clearly the Court cannot issue advisory opinions. And if the Solicitor General did not inform the Court of this announcement that there was to be a reconsideration, and that the rule, the legality of which is the issue before the Court, may not exist by the time that Court decides the opinion, that would be a huge problem for the Solicitor General's office. That is a very important candor, so they let the Court know that this case may be becoming moot very soon. You may end up issuing an advisory opinion. So I think that's very important to take into account.

 

      I would also point out the unique role of the Solicitor General's office. Particularly going to Gene and kind of his comments, which I take that there's really important issues and it's going to affect all these people. But again, the Supreme Court only can decide live cases where there's an active case or controversy. Where there's a disagreement between the parties that are adversely affected that have standing. And the Solicitor General has this -- two other examples I can think of this unique relationship with informing the Court of what's going on.

 

      One is, it usually happens in criminal cases, not often, but the Solicitor General confesses errors sometimes, after winning in the court of appeals and go and tells the Supreme Court, we won and sorry, but we're confessing error. We were wrong. Court of appeal judges do not like that. There's a old saying that an appellate judge once said, "Well, it's one thing if the Supreme Court reverses me, but I'll be darned if that Solicitor General's going to reverse me." So not necessarily a popular position with appellate courts. But it does go to this unique candor and role of the Solicitor General to let the Supreme Court know what's going on in cases.

 

      The other one is, sometimes when there's a cert petition filed, and again, the government won below, anybody else, any other party opposes the cert petition to preserve the victory. But sometimes the Solicitor General says, oh, you know, we did win but we think it's such an important issue, for other reasons it should be decided, and they acquiesce at cert.

 

      So that's part of that relationship. And I want to go to one other thing, kind of talking about the pattern of these changes. Because as Hash talked about, the four changes that were really highlighted at the beginning of the Trump administration, two of them were in union cases, one was in a voting rights case, another was about the presidential power to appoint. But when you go back and look at the Obama administration, I served in the Clinton, Bush, and Obama administrations, so I saw a lot of this before the Trump administration came in. And whether it was Solicitor General Paul Clements or Solicitor General Elena Kagan or Solicitor General Tuttle, there was a lot of continuity about these standards.

 

      And just to put it in perspective, before the Trump administration, in the Obama administration, according to what I've seen in the first four years of the Obama administration, there were no changes like this. Then in the second four years, the second term, wow, these are really not the Earth-shattering cases on voting rights, or union rights, or any of that. One was about the equitable relief that was available under ERISA, the Employee Retirement whatever Act. And that had to do with explaining a change of position. And really it was, there was an intervening case that had come down from the Supreme Court since the earlier briefing.

 

      Another was about the intentional tort exception to the Federal Torts Claim Act. And that was really to explain -- I think the opposing party must have raised this issue to explain that the question before the Court wasn't addressed in the earlier briefs.  So it wasn't really changing positions. It was addressing a position that hadn't been really developed before.

 

      One with a double jeopardy case was very interesting. It was about the -- whether Puerto Rico was a separate sovereign. And there was a lot of history there. There was a change of position from two briefs a couple years ago. But there was an Office of Legal Counsel opinion from decades ago, and then that had changed. So that was pretty much a sui generis case, I think. And it really depended on the way in which the sovereignty issue had come up. You can imagine there's just a myriad of ways that would.

 

      And then the last one was about the alien tort statute in the Kiobel case. That, again, was pretty interesting. That was a case that was re-argued and the Supreme Court changed the question that was presented in that. That's about the alien tort statute. So that also involved a lot of internal government discussion.

 

      So that was the framework in kind of this long-standing institutional interest that I had pointed out before, the Trump administration had really started seeing this. And I do think, particularly for the Affordable Care Act, I think it is, now, the Biden administration is really just going back to the prior position. And I would say, as we were talking about all these other things. Really so many of them have to do with immigration policies, that the agency and the policy makers are changing.

 

      It's not changing a litigation position of something that's going forward to be litigated. It's telling the Court, listen we think this is going to change. There has been directive to the agency to reconsider this. That's, I think, very different than saying, we're coming into the Court and we are changing our position.

 

      We are no longer defending the constitutionality of these appointments of these administrative law judges of the Security and Exchange Commission, which was the Lucia case under the Trump administration. So I do think that it's oversimplified to count those numbers, as Hash pointed out, and to really take a deeper dive. It's not, I think, as dramatic as one might think. And it is enforced, I think, from the prior administration, which had really changed the norm on that.

 

Hashim M. Mooppan:  So I guess what I -- I don’t actually disagree with anything you said about the Obama administration. But I guess I'm a little confused about the Trump versus Biden issue because I agree with you, candor to the Court's extremely important. I think in all four of the Trump administration changes, yeah they were big, high-profile cases. Each of them they filed full-length merits briefs explaining at length what the rationale for the change was. All four of them, the Court ultimately agreed with. So that struck me as sort of consistent with the importance with candor in the Court.

 

      Whereas, in Cedar Point and Brnovich and Terry, none of which involve immigration. None of which involve agency action. The government just filed a letter saying, oh we have another view. We're not going to tell you why. We've just changed.

 

      And then on the agency action cases, I absolutely agree that it's important to tell the Court that the President has instructed the agencies to reconsider. But very importantly, that's to reconsider under the APA. The mere fact that President Biden said they should reconsider the rule doesn't, itself, make the rule go away. And in the interim, the rule is still in effect. So there is a case or controversy. And what historically, under both the Trump administration and the Obama administration, and every administration I'm aware of, the process would be to keep that case pending until the agency actually went through the APA and got rid of the old rule. And then vacate the other litigation as moot.

 

      What seems so remarkable about what they're doing here is, just because they're thinking about changing, if they haven't prejudged things, you don't know whether they're going to change. You don't know how they're going to change. You don't know whether they're going to survive APA review if they change. They've just dismissed these cases and now they don't have to change. Now they can just accept the district court judgment that said that the old rule was invalid. The Trump administration rule was invalid, even though the Supreme Court said it was likely valid.

 

      So what they've essentially done is end-run the APA and allow a single district judge's erroneous judgment to be in effect by merely dismissing the cert petition.

 

Beth Brinkmann:  But a district court opinion isn't going to bind any higher court going forward --

 

Hashim M. Mooppan:  It's a final judgment. It's a final judgment vacating the rule as unlawful.

 

Beth Brinkmann:  It's a district court judgment. And it would be a huge problem for the Solicitor General not to tell the Supreme Court. And it wasn't just somebody might be thinking about changing them. There is a presidential order directing it. So I take your points, but I don't think it's just somebody thinking, oh we might change it so let's get out of it. I don't think that at all. That's just now the way the record is set up.

 

      Also, it's kind of interesting, Hash, interesting views on this. I think a lot of this has to do with timing, right. It's in the middle of the term. Things are moving very quickly. Some of these instances, just the argument has been postponed too. And I haven't seen anything where there's going to be supplemental briefing yet. But we still might see something else there, right, because they haven't dismissed the cases.

 

Hashim M. Mooppan:  Well, no, that's what I'm saying. They haven't. In both Title 10 and Public Charge, they just dismiss.

 

Beth Brinkmann:  Yes, but in the other two, there are the two other ones where they just put off the --

 

Hashim M. Mooppan: Yeah no, the other ones I agree with you. That is much more consistent with the way the Trump administration and the Obama administration handled these agency change cases. They put the cases in abeyance and they wait and see what happens. I've got no objection to that. My objection is to the ones where -- and again, I don't think the Trump administration did it. I don't think the Obama administration did it. Of just dismissing appeals from final judgments against agency rules without the agency actually changing it's position and then getting the final judgments vacated.

 

Hon. Beth A. Williams:  Well, Gene, I saw you nodding along. Does mooting out these cases from a policy perspective, does that limit the Executive power? Is that contrary to the Executive prerogative, right, that institutionally the branch tries to preserve if you moot these out and let these final judgments stand?

 

Gene P. Hamilton:  I think it really depends on the case. It'll depend on the posture of the case. But to go back to the -- again, one of the examples that folks have mentioned this Innovation Law Lab case. So far, all we've seen is a request for the case to be held in abeyance. But if they do the same fact pattern and follow through on the same actions as they've done on some of these other cases, what will happen is, we'll have the case dismissed. We will have a Ninth Circuit decision finding that the use of the MPP program, as it was constructed, was contrary to statute.

 

      Constitutionality wasn't an issue in that case, as I recall. But it was contrary to statute. Depending on, this is the point Hash made in his introductory remarks, depending on what happens then, after they seek dismissal of the case from the Supreme Court's docket, that's really where the rubber's going to meet the road. Are they going to leave in place all of these other appellate court rulings and decisions that will bind future agency action, particularly in the Ninth Circuit, with respect to the Innovation Law Lab case, where you have California and Arizona, of course, being border states, being states where that policy could actually be used?

 

      And so is that an example of a case where the government, if it follows the same course of conduct as it has done in some of these other cases wants to leave in place a decision from the Ninth Circuit that will be cited, at least by advocates and by challengers, if a future administration wants to go in and change.

 

      Other cases are procedurally different. I think they're set up in a different posture. And we can kind of talk about the merits of each of those cases. But there are certainly some of these. And Hash also raised a great point about the interplay with the APA. And when we're talking about rulemakings. Final rules that are on the books. And so the Public Charge being one example. Title 10 being another example. And circuit splits.

 

      When we engage in this course of conduct, like with Public Charge, where I seem to recall, I think it was in the Fourth Circuit, that there was a favorable decision upholding the Public Charge rule. Now that may have subsequently been referred for an en banc panel. But regardless, it leads to, I think, a little bit of acquiescence in some of this law-fare that occurs, where you go and you find the judgment that you want from the district court that you want, or the circuit court that you want. And if it's close enough to an administration, if the case gets up and the administration changes, they're free to reverse course in a manner that the APA never envisioned in terms of eliminating the rule.

 

      And again, I apologize for not recalling the precise details, but I think that in the case of the Public Charge rule, it was a day or two days later that the federal -- that DHS published in the Federal Register that it was rescinding the entire rule based on the court's vacatur of that rule below.

 

      So I think that there is, again, one of these situations where there's a process that Congress set up. And I think that if you, under the APA in the rulemaking context, or in the defense of a statute where, look I understand with MPP, yes, there are 60 or 70,000 people who were put in it. And yes, if they were, as a policy matter, decide not to use it on any cases going forward, there is still undoubtedly going to be challenges associated with people who were initially placed into MPP. It's just the way that it's going to work.

 

      And that is still a live case or controversy. And I think that it's one that should not be dismissed, that the government can go up, it can maintain the position that was asserted in the briefing that was submitted by the prior administration, and let the Supreme Court rule the way that it will. They don't ever have to use the authority. They never have to do it. Let the Supreme Court interpret the statute, provide clarity, so that we don't have to get in this mess in the future, if a future administration wants to use it. But if the Supreme Court can say, yes, the statute permits this type of a program, that's great. If the Supreme Court says no, then that's fine too. But in any event, it doesn't require the Biden administration to actually use the program.

 

Beth Brinkmann:  You're suggesting the Supreme Court would be issuing advisory opinions, so if you want to do this in the future, and that just isn't what the Supreme Court views as jurisprudence or, as I say, the separation of powers. I mean, you really want them deciding cases that are being presented within the four corners of Article III.

 

      I also think to, and you mentioned, that courts have held things in abeyance and I do think that is more common in the lower courts, also, as some of this gets sorted out to determine whether or not, again, whether a position about a statute may be changed, or really about rules and policy positions. I do think that that is very different when you're involved with agencies and presidential orders for reconsidering things, as opposed to defending the constitutionality of a statute. Certainly from the perspective of the Solicitor General's office.

 

      I was involved in many cases where we were looking at the questions of the constitutionality of the various statutes and it's a very, very high bar. So I think that is very different than what we're talking about, these rules and regulations that are being reconsidered or changed.

 

Hashim M. Mooppan:  Yeah, but just to be clear, all right, there is a case or controversy. Because the rule remains in effect until it's rescinded by the APA. And what they're doing here is essentially the case would be dismissed, rather than hold in abeyance. What they're doing is, despite the fact that there's a valid rule in effect, and a live case or controversy, they're just acquiescing in a district court judgment. And that's very different from what I know the Obama administration did and what I know the Trump administration did.

 

      So for example, the Trump administration, when I started in Civil Appellate, I took over from you, in fact, there were multiple challenges to various Obama administration rules. The Department of Labor had several rules that had been enjoined by the single district judge, surprisingly, in Texas. And all those appeals, we could have just dismissed them all and said, yep, we're just going to live with that district court judgment. But instead, one of them we continued to litigate. Two of them we held in abeyance until the Department of Labor changed the rule. That's the traditional way the DOJ has both recognized that agencies can change their mind, but also protected the long-term institutional integrity of the government.

 

      What's very different here is, they're not doing that. They're just accepting district court judgments and Public Charge is particularly remarkable because the Supreme Court said they were likely to win. They abandoned a rule and acquiesced on a district court judgment that the Supreme Court had already said was likely wrong.

 

Beth Brinkmann:  I think the issue is different. I think the point that you make about the Court of Appeals is a good one, Hash, because that is, as we both know from our prior positions there, really looking -- holding something in abeyance is often a way to go there.

 

      I think once a case is in the Supreme Court as being considered by the Supreme Court where it's discretionary review, that type of thing. Different factors do come into play. For example, at the cert stage, when they're deciding whether to do a case, they don't grant cert in every case where they could decide it.

     

      Whether or not it's a live case or controversy, the question is whether they should be deciding an issue in their view of what their role is in the separation of powers. And it's some issue that isn't going forward. I mean, as you know, often the Supreme Court, when they're deciding cert and the government often points on to this, this isn't a good vehicle, this isn't going to have long ongoing implications. In fact, sometimes if there's a cert petition about a statute even, the government may point out to the Supreme Court that it's of diminishing importance.

 

Hashim M. Mooppan:  I agree. But I think that almost cuts the other way here. Because both Title 10 and Public Charge were granted cases. And in fact, the government waited until after the Court granted cert to dismiss. If they actually thought it wasn't cert worthy, in all the [inaudible 00:47:14] it would have actually been much more sensible to do it beforehand.

 

      So I think actually what they were trying to do is, they were hoping the Court would bail them out. And when the Court didn't bail them out and the Court granted cert, then they pulled the rugs out from underneath both the Court and the parties.

 

Beth Brinkmann:  I think that you know, the passes of the Department of Justice, at least in my experience, is much more even handed than by that, and yet it's quite slow moving. So we're sitting here in March and, you know, it's been what, weeks since the new administration was in. So I think that -- I mean, I know the process on DOMA took, I don't know, a year to make those determinations. So I think you might be reading too much and giving too much credit to a process that we both know takes a long time.

 

Hashim M. Mooppan:  It's possible. But you know they did manage to put both the border wall case and return to Mexico in abeyance within a matter of a week or two. So it's not really clear to me why it would take longer to put this one in abeyance.

 

Beth Brinkmann:  Well, I think it's a matter of the process by which they do, and you know as you know also, it involves the agency. It involves whether in some of these instances whether the President issued these orders for the agencies to reconsider. So I do think that there's a lot of different factors that are playing -- that come into play there.

 

      And again, I point out, if they weren't telling the Supreme Court something and then there was a change, there'd be a problem too. So it is something that the Solicitor General's office weighs really carefully to try and parse all this out. And they're doing it very quickly because all of this is already in the middle of the term.

 

Hon. Beth A. Williams:  I want to make sure to get some questions from the audience, since we have a few questions in the chat. So this is a question from Jeffrey Slaughter to all panelists. To what extent is the Court obliged to honor a new administration's about-face in pending litigation? And do you think that there are any switches, thus far, where the credibility of the Solicitor General's office could be damaged?

 

      So I guess first on the Court's reaction. What do you think is the Court's -- would be the Court's reaction to this? And I guess the Court as a whole, and perhaps specific justices too.

 

Hashim M. Mooppan:  Yeah, look. To what extent is the Court obliged? I think it's going to depend on which are the types of cases we're talking about. If it's the agency change cases, they're stuck. Because if the agency has changed it's position or they've dismissed their petition, that's the end of it.

 

      But in the cases where it's just a change of litigation positions, so the cases like Cedar Point and Brnovich and Terry, no, the Court's not obliged. They'll appoint an amicus. The Court's going to decide the case as the Court is inclined to decide the case. It's always hard to predict. But I don't know, for those folks who listened to the oral argument in Cedar Point, it sure doesn't seem like the Court is likely to agree with the new administration position on Cedar Point. It seems much more likely they agree with the petitioner's position, which is what the prior administration agreed with. We'll see with some of the other ones.

 

Beth Brinkmann:  I think that's where it's important. I agree with Hash, to distinguish. This is an advocate's position. It's not an adjudication. It's the Court's law that binds its position that will be presented to the Supreme Court and the Court decides it. And sometimes they bring in amici, they bring in other people. And that is part of the real role of the Solicitor General, to make sure all of the -- that they're assisting the Court in hearing all sides of that.

 

      One thing I wanted to point out about the Court's reaction to the Solicitor General's office, there were some points in oral arguments where the justices, even in these ERISA and Federal Tort Claim cases I mentioned, where they were offended that there'd been a change in position. Even when it really wasn't, in some cases, too much of a change in position at all, it was like clarified that they hadn't addressed the issue in the earlier brief.

 

      But one thing I wanted to point out is, not only is there a special relationship between the Solicitor General and the Supreme Court because of the candor and everything that's due, but let's not forget, four by my count numbers of that Court spent quite a bit of time in the Solicitor General's office. The Chief Justice spent a couple years in the Solicitor General's office and definitely has a fondness for the office and I think, really, has his own views about the institutional significance. Justice Alito worked there. Justice Kavanaugh was, I believe, a Bristow Fellow. And, of course, Elena Kagan was a Solicitor General and had to make these very decisions.

 

      So that, in my mind no doubt whether we hear it from them, I don't think we will. But it must somewhat inform their approach. And I think it could cut either way. Well, we didn't do that, or yes, you should have done that. That's what I thought you should have done. But I think it just brings a kind of human interest part to this analysis that all of them have spent time in the office.

 

Gene P. Hamilton:  One interesting thing is, it'll be harder to tell because -- precisely because they didn't file briefs on all of these cases. They didn't participate in argument in the VRA case or Cedar Point. So we -- normally that would have been where the rubber hit the road on how the Court felt about the change.

 

      It's not clear yet what'll happen in Terry. Whether they'll participate. It'll be awfully weird to have a criminal case where they're not in, but they also didn't file a brief, so it'd be awfully weird to have them argue. I think they will be presumably participating in the AFP case, the First Amendment California Disclosure case. So that might be the one window we have to see what the Court thinks about their changes, whether they ask the sort of questions that got asked of both the Trump administration and the Obama administration SG's offices when they changed.

 

Beth Brinkmann:  You know they didn't really ask many questions of the Trump administration. Justice Sotomayor, in one argument, brought it up. And with everything, I think that was in that voting rights case, where it was changing a position of an interpretation of a federal statute that bipartisan, decades, the Department of Justice, both sides of the aisle interpreted the same way. And I think she was the only one to even bring it up in that case. I might not have the best memory, but I think it was the voting case.

 

      So they didn't make much of a fuss at all. It was really early, not high-profile cases, where they made the comment, which I don't know what to make of that.

 

Hashim M. Mooppan:  Well, I think part of that is, and I think Michael Dreeben pointed this out in his article, I think they were upset as much about the fact that the phrasing in the briefs about why the change in position had been made. Not sort of candidly admitting, look there'd been a change in administration and that's what was going on. I think once you start saying, there's a new administration and we've revisited it, a lot of the knee-jerk reaction to --

 

Beth Brinkmann:  Yeah, I think that other language was an artifice. You know the Solicitor General has these conventions of the way they say things to the Supreme Court, and I don't think they really thought --

 

Hashim M. Mooppan:  No, yeah, I --

 

Beth Brinkmann:  I think you're right. The way they changed it sound more direct.

 

Hon. Beth A. Williams:  Well, the Court seems to be agreeing to these dismissals. Could they hold the cases in abeyance until the regulation is changed, if you think that some Supreme Court Justices might be seeing this as an end run to the APA?

 

Hashim M. Mooppan:  Well, that's what's so procedurally problematic, right. Is under the rules, a dismissal is automatic, as long as all parties agree. Now if they've given anyone notice that this was going to happen, then parties might have tried to intervene. Which is what has now happened. States have all filed motions to intervene and they're trying to get the Court to either not dismiss or pull back the dismissals on the ground that, if they had been able to intervene, then there wouldn't be grounds to dismiss. But that's part of why all of it strikes me as very procedurally unusual that they took this basically unprecedented step of dismissing a granted case in a final action against the agency and they did it without telling anyone, so that no one could protect their rights.

 

Gene P. Hamilton:  Yeah, I would echo that.

 

Beth Brinkmann:  Back to the Article III question, when it comes up, whose rights are at issue. So that's one of the issues.

 

Hashim M. Mooppan:   The right of the people who are benefitting from the rule that's currently in effect.  They're the ones whose rights are at issue.

 

Gene P. Hamilton:  And I was just going to echo exactly what Hash said. Because this hits at, both, the question you just asked, Beth, and also the prior question. To what extent is the Court obliged to follow.  Well, we actually won't know in some of these cases because under the Supreme Court's rule, some of these cases have just been dismissed. We'll never know what the justices will see, what they would have thought about the merits of the case or the merits of the switches in position.

 

      But I think that, to Hash's point, when there is no notice whatsoever, and there are parties who would have been -- So in the Public Charge cases, I know that there was -- we saw in the media and the press, it was reported a number of states tried to intervene after the case was dismissed. They tried to intervene in a number of the circuit courts. And to my knowledge, at least, I think, in the Fourth and perhaps elsewhere also, that was not successful.

 

      And the states who had a legitimate interest, they had rights. They had a very strong interest in the case because of the impact on what they spend in tax dollars, could have been implicated where the federal government was previously representing a position that the states agreed with. And then the federal government completely about-faced, switches positions. It doesn't give any notice to anyone. Doesn't give any chance for anyone to opine. Those parties don't have a chance to get involved and defend their rights.

 

Beth Brinkmann:  Why can't they bring a new case, if they have standing?

 

Hashim M. Mooppan:  There's nothing to challenge at this point. We have the final judgment. The district court entered the final judgment vacating the rule. Now the rule's gone, so there's nothing to challenge.

 

Gene P. Hamilton:  Exactly.

 

Hon. Beth A. Williams:  I think we have time for one more question, and this is from Greg Curfman (sp) and he's asking about the Medicaid work requirements. Can any of the panelists discuss the Medicaid work requirements case before the Supreme Court? How could you expect the Biden administration to support the Trump administration's position on work requirements when their policy position is just completely different?

 

Hashim M. Mooppan:  So look, I would say two things. One is if they really can defend it the way you'd typically do it -- and I think they're actually consistent on this one. This one is, they're doing something more closer to the normal way.

 

      What you would do is you would say they [inaudible 00:57:23] actually change their underlying position, and then you would try to get the Court to vacate the judgment below. And that's essentially what the Biden administration has done. They actually filed a motion to vacate the D.C. Circuit's opinion. They did it in a little bit of a weird posture because they did it before the agency had actually changed. But they are asking for a vacatur.

 

      But the second thing I would say is, I think the way you can usually expect it to be defended, is because you recognize that the question is here isn't a policy question of, is this a good idea. It's a question, as Gene pointed out of, do you have the lawful authority to do this? And you could very well think that an agency has the lawful authority to do something, even though you might not think they should do it.

 

      So there were lots of things that, at the tail end -- I mentioned it before, the fiduciary rule during the Obama administration that the Trump administration continued to defend. I don't know whether the Department of Labor -- or I won't get into whether the Department of Labor would have thought that that was a good idea or a bad idea. But the question of whether they had the lawful authority to do it is just a different question.

 

Beth Brinkmann:  Right, but surely they came in and didn’t defend the constitutionality of the appointment of administrative law judges [inaudible 00:58:34] Exchange Commission, very inconsistent with years of positions on that and in lower court litigation.

 

Gene P. Hamilton:  You have to really challenge --

 

Hashim M. Mooppan:  We were right about that, too, though so like --

 

Beth Brinkmann:  But that's not the issue that we're talking about, right?

 

Hashim M. Mooppan:  No, I think it is, partly. But I think the point was, the way we changed position in that was in a way that was teed it up for the Court to have full briefing, adversarial process, and a decision on it.

 

Beth Brinkmann:  I agree with that.  That's what I'm saying.  That's what the process is. And I think that, though, it has to be a -- not in a, you're asking the Court for an advisory opinion, like if somebody wants to do this in the future, they can do that. That's just not what the Court's there for. It's not a court of an appellate right. It's a court of discretionary review. It takes into consideration factors like, if the cert, as we all know, sometimes they dismiss cases as improvidently granted when they find out that they don't have ongoing consequences. I mean, that's another approach that the Court has taken when it turns out some case isn't going to have ongoing significance.

 

Hon. Beth A. Williams:  So this has been a fantastic discussion. I think really great points made on all sides. It's now 3:00 so I want to be mindful of our time. I just want to give the panelists a minute if you have any closing remarks you want to add that we didn't get to.

 

Hashim M. Mooppan:  Nothing for me.

 

Beth Brinkmann:  Thanks for having me. It's a very interesting discussion. Appreciate it.

 

Gene P. Hamilton:  Beth, I guess the only remaining point that I would make is that, as a practical matter, I think this is a dangerous practice. And across the board, if an administration acquiesces to this kind of law-fare that we're seeing with some of these cases, you will eventually die by the same kind of law-fare. And that should factor into your considerations, as well.

 

Beth Brinkmann:  I've got to just say, I don't go for labels about law-fare and you and all of that. I just don't. I'm looking at the institution of the Office of the Solicitor General and the Supreme Court of the United States. And what happens when there are policy changes that come into play. And how to respect the Court and assure that they're not deciding cases that are going to have ongoing consequences because policies are being changed. And the prerogative of any president to change policies and have agencies direct that. So I think that's really are the factors to be taken into account.

 

Hon. Beth A. Williams:  Well, thank you so much to all of our fantastic panelists. This has been a fantastic discussion. I'll throw it back over to Nick.

 

Nick Marr:  Yes. We could go another hour, it seems. But unfortunately we've reached the end of our time. Thank you all very much for joining us today. Especially to the panelists for the benefit of your valuable time. To our moderator, Beth, thank you very much.  And to our audience calling in your great questions. There were many good ones. We didn't get to all of them, unfortunately. But thank you for your good questions.

 

      As a reminder, be checking your email and our websites for announcements about upcoming teleforum calls and Zoom events like this one. And with that, until next time. Have a great weekend. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.