Claiming that it “is currently unclear whether all 67 county boards of elections” in Pennsylvania are following instructions to segregate mail-in ballots that arrive after Election Day, Republicans on Friday asked the Supreme Court to order election boards to keep those ballots separate and to refrain from counting them while the Republicans’ legal challenge to those ballots remains pending. The request was the latest development in the battle for Pennsylvania’s 20 electoral college votes, but it came after Democrat Joe Biden had pulled ahead in the vote count in the state. And news reports suggested that the number of ballots received after Election Day might not ultimately be enough to affect the outcome in Pennsylvania.

The 11-page filing came in the challenge by Pennsylvania Republicans and Pennsylvania legislators to a ruling by the Pennsylvania Supreme Court that requires the state to count any ballots received by Friday, Nov. 6, unless they are postmarked after Election Day or there is other strong evidence that they were mailed after Election Day. The Pennsylvania Republicans and legislators had asked the justices to put that ruling on hold and, later, to fast-track their consideration of a petition for review of the state supreme court’s decision. Continue reading »

Twenty-one-year-old college student James King was walking between his summer jobs one afternoon. On his walk, he was approached by two plain-clothes officers, Douglas Brownback and Todd Allen, who were assigned to an FBI fugitive task force in Grand Rapids, Michigan. Brownback and Allen were on the lookout for a home invasion suspect. They did not have a clear or recent picture of the suspect, but they knew he was a 26-year-old white male, between 5-feet-10-inches and 6-feet-3-inches tall, who wore glasses, and apparently bought soda from the same gas station around the same time every day. Unfortunately for King, he fit the general description and was walking near the gas station, so Brownback and Allen decided to stop him.

While King at first acquiesced to the stop after spying badges hanging around the officers’ necks, when the officers took his wallet from his pocket, King asked if he was being mugged and tried to run away. The officers tackled him to the ground, and when King put up a struggle, they choked him and punched him repeatedly in the head, causing one onlooker to tell the 911 operator that the officers were “gonna kill this man.” As it turns out, King wasn’t the suspect. And when the state of Michigan nevertheless prosecuted King for resisting arrest, a jury acquitted him of all charges. Continue reading »

In Niz-Chavez v. Barr, the Supreme Court rekindles its on-again, off-again relationship with the “stop-time rule,” a provision in the Immigration and Nationality Act that forecloses access to cancellation of removal, an important form of discretionary relief for noncitizens in removal proceedings. This case, which will be argued on Monday, marks the third time since 2018 that the court has tangled with the stop-time rule, with previous rendezvous in Pereira v. Sessions and Barton v. Barr. Niz-Chavez builds upon the Pereira litigation, and will require the justices to examine, once again, how notice of removal proceedings intersects with the stop-time rule. Continue reading »

This week we highlight cert petitions that ask the Supreme Court to review, among other things, conflicting lower-court decisions concerning a Trump administration rule that prohibits clinics that receive funds through the federal Title X program from providing referrals for abortion.

The Title X Family Planning Program provides grants to support health services, including cancer screening and pregnancy counseling. By statute, no Title X funds “shall be used in programs where abortion is a method of family planning.” In 2019, the Department of Health and Human Services issued its rule on the ground that “[i]f a Title X project refers for … abortion as a method of family planning, it is a program ‘where abortion is a method of family planning.’” The previous rule had allowed Title X clinics to offer counseling regarding abortion and referrals upon request. Challengers of the rule claim that it will prevent providers from complying with requirements that “all pregnancy counseling” should be “nondirective.” The administration maintains that the rule resembles a 1988 rule that the Supreme Court upheld in Rust v. Sullivan. The petitions that ask the justices to resolve the legality of the rule come to the Supreme Court after the U.S. Court of Appeals for the 9th Circuit upheld the rule (American Medical Association v. Azar and Oregon v. Azar) and the en banc U.S. Court of Appeals for the 4th Circuit struck it down (Azar v. Mayor and City Council of Baltimore).

Continue reading »

This article is part of a symposium previewing California v. Texas.

Brietta Clark is a professor of law and J. Rex Dibble fellow at Loyola Law School, Loyola Marymount University, Los Angeles.

In California v. Texas, two individuals and 18 states are once again asking the Supreme Court to do what it refused to do eight years ago in National Federation of Independent Business v. Sebelius. They want the court to find the minimum coverage provision in Section 5000A of the Patient Protection and Affordable Care Act unconstitutional and to invalidate the entire ACA as inseverable from the provision.

To justify a second bite at this apple, the plaintiffs are relying on the 2017 Tax Cuts and Jobs Act, which amended Section 5000A to set the penalty for failing to have insurance at zero. Paradoxically, they claim the TCJA transformed the minimum coverage provision into an unconstitutional mandate to buy insurance, despite the fact that it eliminated the only means of enforcing the provision. Indeed, President Donald Trump and legislators have described the TCJA as effectively repealing the mandate so that no one would be compelled to purchase insurance. Continue reading »

The Supreme Court meets Friday morning for a private conference to discuss whether to add any new cases to its docket. Among the petitions slated for discussion is a case involving the Sixth Amendment right to effective assistance of counsel for a person who was sentenced to death in Arizona, along with a pair of cases that involve the status of administrative law judges that adjudicate disability benefits under the Social Security Administration — specifically, what people seeking benefits need to do in order to mount a challenge arguing that their judge was not properly appointed under the Constitution’s appointments clause. Continue reading »

Pennsylvania election officials urged the Supreme Court to deny the Trump campaign’s motion to join the Pennsylvania Republican Party’s appeal of a state court ruling that requires election officials to count mail-in ballots received by Nov. 6. The campaign went to the court on Wednesday afternoon, telling them that the outcome of the presidential election could hinge on the vote in Pennsylvania. By the time the election officials and the Democratic Party filed their briefs opposing the campaign’s intervention on Thursday afternoon, former Vice President Joe Biden had closed the gap with the president significantly, with the counting expected to conclude late Thursday or Friday. Continue reading »

This article is part of a symposium previewing California v. Texas.

Josh Blackman is a professor of law at South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the author of two (and soon three) books on Obamacare’s legal controversies. Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. Together they filed an amicus brief on Cato’s behalf supporting respondents Neill Hurley and John Nantz.

Obamacare is back at the Supreme Court, again. This time, the justices will be called upon to decide the constitutionality of the individual mandate and, if necessary, how much of the rest of the Affordable Care Act has to fall.

But wait, didn’t the world-historical litigation culminating in National Federation of Independent Business v. Sebelius settle those questions in 2012? Remember, Chief Justice John Roberts changed his vote and transmogrified the penalty for not complying with the mandate to purchase health insurance into a tax? Well yes, but since Congress zeroed out that tax-penalty in 2017, we have to replay this script all over again. Continue reading »

This article is part of a symposium previewing California v. Texas.

Katie Keith is an associate research professor at Georgetown University’s Health Policy Institute and an adjunct professor at Georgetown University Law Center. She writes the “Following the ACA” column for Health Affairs. She joined an amicus brief on behalf of health policy scholars supporting California.

Before deciding whether the individual mandate is constitutional or severable from the rest of the Affordable Care Act in California v. Texas, the Supreme Court must first decide whether it can reach those questions. Under Article III of the Constitution, federal courts can only adjudicate actual cases or controversies. That constitutional requirement – embodied in the doctrine known as standing – means that at least one plaintiff must be able to show a concrete injury that is fairly traceable to the mandate and likely to be redressed by a favorable court decision. Continue reading »

The Supreme Court heard nearly two hours of oral argument Wednesday in Fulton v. City of Philadelphia, the high-profile case that involves a clash between religious rights and government efforts to prevent discrimination against same-sex couples. A majority of the court seemed sympathetic to the religious challengers in the case, but the justices appeared to be searching for a way to issue a narrow, rather than a sweeping, ruling.

Meanwhile, with the presidential election results still too close to call in several states and many ballots still being counted, President Donald Trump’s campaign is seeking to intervene at the Supreme Court in a dispute over late-arriving ballots in Pennsylvania. The justices declined to intervene in the dispute before Election Day, but a petition from Pennsylvania Republicans asking the court to get involved now remains pending. The justices ordered state officials to file a response to the Trump campaign’s motion to intervene by 5 p.m. EST on Thursday. Continue reading »