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August 3, 2021
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Defense Department pauses border wall construction as it reviews Biden executive order

President Biden will name a powerhouse lawyer, Elizabeth Prelogar, to serve as acting solicitor general, in an acknowledgment that the office charged with representing the government before the Supreme Court will face an enormous workload both reversing Trump administration legal positions and developing a defense strategy as Biden’s executive actions come under inevitable legal challenge.

Under normal circumstances, when an election produces an administration of a different political stripe, the solicitor general plays a key role managing a wave of potential reversals on certain issues. As Biden replaces Donald Trump, however, it could look more like a tsunami. 

In the short term, for instance, the solicitor general’s office is likely to notify the court of a new position in a blockbuster dispute concerning the future of the Affordable Care Act, defending the law rather than seeking to overturn it — but also in other cases tied to controversial Trump policies, some of which the Biden administration may attempt to rescind before the Supreme Court can rule on them.

Under the Trump administration, the solicitor general’s office was particularly aggressive defending a broad array of Trump’s policies in hot button areas such as immigration, religion and abortion, often asking the justices to jump in before an issue had made its way through the lower courts. 

Biden has yet to put forward his nominee for the permanent job. The solicitor general is the person who traditionally represents the US government in cases at the Supreme Court and regularly jousts with the justices in their majestic red velvet lined chamber — or, as with current practice, over the telephone.

In the interim, Prelogar will be in the forefront. She is a veteran of the Office of Solicitor General having served as an assistant in the office and also worked recently as an adviser to former special counsel Robert Mueller during his investigation into Russian interference into the 2016 election. 

Prelogar worked as a former clerk to Judge Merrick Garland, Biden’s nominee for Attorney General, as well as the late Justice Ruth Bader Ginsburg and Justice Elena Kagan. Biden has yet to nominate a full-time solicitor general, and once that person is confirmed, she will be the principal deputy. 

“She’s a spectacular lawyer with impeccable integrity and is ideal for this role in the Department,” said Andrew Goldstein, a former top Mueller team prosecutor.

But while moving quickly, the Biden solicitor general’s office also must be careful so as not to irritate justices who expect the government to be an honest broker acting in the long-term interests of the United States, not on the particular whim of one president or another. The court treats government lawyers with special solicitude, but in turn, the justices expect a level of consistency even when an election triggers a change of party in the executive branch.