Why the Biden Administration Was Right Earlier This Week to Change Course in the Obamacare Challenge Pending Before the Court

VIKRAM DAVID AMAR

Illinois Law Dean Vikram David Amar comments on an unusual move by the U.S. Solicitor General’s office, sending a letter to the U.S. Supreme Court amending the position of the federal government in a case currently pending before the Court challenging the Affordable Care Act. Dean Amar explains why the arrival of a new administration should generally not trigger such position reversals, but he argues that the unusual circumstances—specifically the “exceptional implausibility” of the government’s prior filings—may justify the government’s action in this instance.

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Sharifi v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2382

Opinion Date: February 10, 2021

Judge: O'Malley

Areas of Law: Constitutional Law, International Law, Military Law, Real Estate & Property Law

Sharifi alleges the U.S. Army took his land when it built Combat Outpost Millet in Afghanistan in 2010. The government asserted that Sharifi’s Fifth Amendment complaint was “vague and ambiguous” because it did not specifically identify the property interest that the government allegedly took, that Sharifi had not provided a legal description of the land, a deed, or other documents that would allow the government to identify the location. The Claims Court instructed Sharifi to file an amended complaint. Sharifi alleged that government records, verified by the District Governor of Arghandab, showed that his grandfather owned the land on which the Army built COP Millet: Ownership of the land passed to Sharifi and his siblings, who subdivided the land by a 2004 inheritance agreement. The government submitted six declarations, including several witness declarations and an expert declaration on Afghan law. The Claims Court dismissed Sharifi’s amended complaint for failure to show a cognizable property interest. The Federal Circuit affirmed. The government records attached to Sharifi’s amended complaint and the 2004 inheritance agreement do not constitute proof of land ownership under the laws of Afghanistan. Even accepting as true all factual allegations in Sharifi’s amended complaint, the amended complaint does not contain sufficient facts to state a plausible takings claim.