Petition of the day

By on Mar 4, 2015 at 10:23 pm

The petition of the day is:


Issue: Whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Rule 12(b)(6).


This morning the Court heard oral argument in King v. Burwell, a challenge to the availability of tax subsidies for individuals who purchase health insurance on an exchange established by the federal government. Lyle Denniston covered the decision for this blog, Amy Howe explained the argument in Plain English, and Mark Walsh provided a view from the Courtroom.  Writing for this blog, Eric Citron provided our initial mid-argument report (with a follow-up later on), while Tejinder Singh had another mid-argument update.

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Posted in Round-up

If there was any doubt that Wednesday was a big day at the Supreme Court, a reminder came as a group of reporters waited in line in a hallway to pass through security to enter the courtroom.

Around 9:30 a.m., just a half-hour before the arguments in King v. Burwell were to begin, Supreme Court police officers asked us to make an opening. One of the named parties, Health and Human Services Secretary Sylvia Burwell and her entourage of a few aides and security personnel passed through.

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After nearly ninety minutes of oral arguments today in King v. Burwell, the challenge to the availability of tax subsidies for people who purchase health insurance on a marketplace created by the federal government, six Justices had tipped their hands.  Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg all seemed like solid votes for the federal government, defending the subsidies, while the challengers could clearly count on the votes of Justices Antonin Scalia and Samuel Alito.  Chief Justice John Roberts – who three years ago joined the Court’s more liberal Justices to uphold another provision of the Affordable Care Act, requiring everyone to buy health insurance or pay a penalty (it’s a tax!) – kept his cards close to his chest, asking only a few questions that gave no real hint as to how he might vote.  But even if it ultimately doesn’t get the Chief Justice’s vote, the government could still win as long as it can pick up just one more vote.  And that seemed like at least a possibility, because Justice Anthony Kennedy asked several questions which suggested that he might be leaning more toward the government than the challengers.  Let’s talk about today’s argument in Plain English.

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One of the most important functions of oral argument in the Supreme Court is that it can strongly shape the next round: the private deliberations among the nine Justices as they start work on a decision.  The much-awaited hearing Wednesday on the stiff new challenge to the Affordable Care Act strongly suggested that Topic A in private could well be: how bad will we make things if we rule against the government?

Justice Anthony M. Kennedy, who seemed decidedly more sympathetic to the government than might have been expected, worried over a constitutional blow against the states.  But even the two Justices most openly sympathetic to the challengers — Justices Samuel A. Alito, Jr., and Antonin Scalia — seemed to concede the dire consequences that could follow, by suggesting ways to alleviate it.  Alito said the Court could delay its ruling to allow time to adjust, and Scalia said Congress could be counted on to fix it.

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The first case argued Tuesday morning, City of Los Angeles v. Patel, was about whether a Los Angeles ordinance that requires motel operators to allow the police to examine hotel guest registers, without seeking a warrant first, is constitutional. The en banc Ninth Circuit ruled that is is not, because the ordinance lacks an “essential procedural safeguard… pre-compliance judicial review.” Prior to argument, many observers thought this meant that some judicial “administrative warrant” process was required. But now, after reviewing the argument transcript, confusion regarding exactly what the plaintiffs are seeking, as expressed by more than one Justice, may lead to reversal and remand rather than a substantive Fourth Amendment ruling. Continue reading »

Today’s transcript

By on Mar 4, 2015 at 1:22 pm

The transcript of this morning’s argument in King v. Burwell is here.

Posted in Merits Cases

Until we hear how Justice Kennedy questioned the government, the most important news from the morning’s argument is clearly his focus on the potential consequences for states that choose not to establish their own exchanges under the petitioners’ reading of the statute – that is, that citizens of those states would receive no subsidy and no resulting mandate tax penalty.  Trained constitutional lawyers will find it noteworthy that his focus here is on the consequence for states as such, and not for their citizens; Kennedy’s concern is about the federal/state balance and his distrust of a reading that puts a gun to the head of states that fail to set up their own exchanges – threatening them with the almost certain destruction of their statewide insurance systems if they do not comply.  That concern might be interpreted (as a matter of legal theory) in a few different ways:  Justice Kennedy might believe that Congress would not have intended to set up such a dubious system; he might believe that this reading is required but actually unconstitutional (so that he would strike down the statute’s condition that subsidies apply only to exchanges established by the state); or – perhaps most likely – he might believe that the statute should be interpreted so as to avoid the “serious constitutional problem” he identified. Continue reading »


(11:13 AM) I stepped out of the room approximately five minutes into the Solicitor General’s argument. Here’s what happened since Eric’s last update.

The Justices focused their questioning for the remainder of Michael Carvin’s argument for the petitioners on whether his interpretation of the statute had put an “elephant in a mousehole,” i.e., whether it would have made any sense for Congress to put such an important condition for receiving subsidies inside a technical formula for calculating the amount of the subsidy. Justices Ginsburg and Kagan focused on this point. Carvin parried that if one was looking for information about who should get a tax credit (the form of the subsidy at issue), then the natural place to look would be in the tax code, and not in the title of the U.S. code relating to public health and exchanges. That didn’t sit well with Justice Kagan, who tested the argument against Carvin’s other claim, which is that Congress was trying to create an incentive for states; in Justice Kagan’s view, the states would look to the provisions relating to establishing exchanges, and not to the technical coverage formula, to decide whether to set one up. Thus, if Congress was trying to create incentives for states, it would put those incentives in the place where they would look. Justice Alito jumped in to help Carvin, saying that if a state was looking for information about tax credits, it would look to the tax code. Continue reading »


First update: Liberals lead line in questioning of Petitioner in King, but Kennedy asks important question about disrupting federal state balance.

Counsel for the petitioners – who are seeking to invalidate subsidies in states with federal exchanges – faced tough questioning from the more liberal Justices in the first 20 minutes of today’s argument.  In particular, a perceptive hypothetical from Justice Kagan forced the petitioners to concede that context, rather than just the literal text of the statute, is important to understanding it.  Once the argument turned to context, however, Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges – likening this to an unconstitutional form of federal coercion. That made him seem skeptical of the petitioners’ reading of the statute, a hopeful point for defenders of the existing subsidies in all states.

While Justice Kennedy also suggested that perhaps this reading could not be avoided, his skepticism suggests that both sides will be trying hard to get his critical vote.

Second update: Perceptive hypothetical from Justice Kagan forces petitioners to focus on context, not just text.

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