Issue: (1) Whether 26 U.S.C. § 512(a)(3)(E)(i), which provides that investment income of a voluntary employees’ beneficiary association (“VEBA”) is tax exempt only if a set-aside of the income for a purpose specified in Section 512(a)(3)(B)(ii) “does not result in an amount of assets set aside for such purpose in excess of the account limit determined under section 419A” – which, along with Section 419, limits an employer’s deduction for contributions to a VEBA – must be interpreted consistently with Sections 419 and 419A to mean that a set-aside of income results in set-aside assets only if the income is considered, under Section 419(c), not to have been spent for a specified purpose in the year the income is earned, but instead to have been accumulated for use in a later year; (2) whether a regulation adopting the Federal Circuit’s interpretation outstanding in “temporary” form since 1986 should be given deference despite having been issued without the explanation required by 5 U.S.C. § 706(2)(A) and without the prior notice and comment required by 5 U.S.C. § 553; and (3) whether the variance rule in Treasury Regulation § 301.6402-2(b)(1) is jurisdictional, barring the deference argument and precluding application of judicial exceptions to such administrative exhaustion requirements.
On Monday, the Court issued orders from its May 19 Conference. It did not add any new cases to its merits docket for next Term or call for the views of the Solicitor General in any cases. The Court also released its opinions in three cases. On Thursday, the Justices met for their May 26 Conference; our list of "petitions to watch" for that Conference is available here.
United States v. Texas Whether the Obama administration has the authority to issue its new deferred-action policy for undocumented immigrants, whether the states have standing to challenge the policy at all, whether DHS was required to notify the public about the proposed policy and provide opportunity for the public to weigh in on it, and whether the policy violates the Constitution’s “Take Care Clause,” which requires the president to “take care that the laws be faithfully executed.”
Zubik v. Burwell Because both the Obama administration and the religious non-profits, colleges, and schools challenging the accommodation offered to those who object to complying with the Affordable Care Act’s birth control mandate confirm that contraceptive coverage could be provided to the challengers’ female employees, through the challengers’ insurance companies, without any notice from the challengers, the decisions of the courts of appeals rejecting the challenge are vacated and remanded. Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates the challengers’ religious exercise while at the same time ensuring that women covered by the challengers’ health plans receive full and equal health coverage, including contraceptive coverage.
Whole Woman’s Health v. Hellerstedt Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest.
Spokeo, Inc. v. Robins Because the Ninth Circuit failed to consider both aspects of the injury-in-fact requirements -- an injury in fact must be both concrete and particularized, but the Ninth Circuit's observations concerned only "particularization" -- its Article III standing analysis was incomplete.
Rogers v. Chatman Whether petitioner was denied effective assistance of counsel where (1) the only issue at trial was whether petitioner is intellectually disabled; (2) petitioner’s IQ scores were within the range for intellectual disability with the Flynn effect, a well-established scientific principle demonstrating that aging norms cause IQ scores to rise for each year since the test was normed, but outside the range without it; and (3) petitioner’s counsel failed to explain the Flynn effect.
Unite Here Local 54 v. Trump Entertainment Resorts, Inc. Whether, under § 1113 of the Bankruptcy Code, a bankruptcy court may authorize a unionized debtor employer to abolish its employees’ pensions, health coverage and other benefits without complying with its bargaining obligations under the National Labor Relations Act, when no collective bargaining agreement exists.