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Law360: Dems Urge SG To Flip Trump Stance On Donor Privacy Law

February 09, 2021

As Senate Democrats urge acting Solicitor General Elizabeth B. Prelogar to support California in a First Amendment challenge from conservative advocacy groups, O’Melveny partner and former Deputy US Solicitor General Michael Dreeben shared his thoughts with Law360 about why the solicitor general’s office is often reluctant to reverse the government’s position in a case following a change in administrations.

“The SG’s office has an ongoing relationship with the Supreme Court in which its credibility is critical, so it will always take into account how its alterations in position will be received by the court,” Dreeben said.

The publication noted government reversals have drawn public criticisms from the bench, complicating the crucial role of the solicitor general, a position nicknamed “the 10th justice.”

Dreeben told Law360 that solicitor general’s office “also has a deep obligation to consider institutional interests of the government which may not change from administration to administration.” As a result, the government’s position rarely changes even when new leaders disagree with the old stance.

Dreeben said the government’s brief in the disclosure case “posed a significant threat of jeopardizing IRS data collection practices,” a factor that he said supports a change in position before the high court hears arguments later this year.

He added that Biden’s solicitor general should be open to some reversals because “the Trump administration had taken some fairly radical positions that departed from ordinary institutional concerns.” Dreeben’s recent law review article, which senators cited in their letter, offers an expanded discussion of that point.

Some observers expect that the government will shift its stance in an even higher-profile dispute—a challenge to the Affordable Care Act. “The government will have to take its shots on reversing positions the Trump administration took,” Dreeben said. “There’s a wide variety of cases on which the current administration may disagree, and a wholesale reversal of all positions could seem quite abrupt.”

Law360 subscribers can read the full article here.