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Silence, and speculation, on health care (UPDATED)

UPDATED 6:02 p.m.  The legality of tax credits for individuals who shop for health insurance on federally run marketplaces is also under review now by the en banc U.S. Court of Appeals for the D.C. Circuit.  On Monday, the Obama administration filed its brief for that appeal, arguing that the challengers’ view of the issue would lead to the operation of exchanges “on which no individual could lawfully shop and no insurance plan could lawfully be sold.”  The challengers’ reply brief is due on November 17, and oral argument will be held on December 17.  The government’s brief can be read here; thanks to Howard Bashman of the How Appealing blog for a link to the document.


The Supreme Court on Monday set off a new round of questions and speculation about its view on a significant new threat to the federal health care law, taking no immediate action on an urgent plea to decide the issue swiftly.  The Court did schedule another look at the case of King v. Burwell at the Justices’ private Conference this Friday, raising the prospect that something may emerge a week from today.

At issue in the case is the availability to more than four million individuals of a federal subsidy to help them afford a health insurance policy in one of the thirty-four states where the insurance marketplace (or “exchange”) is run by the federal government rather than by a state.  The challengers insist that the language of the Affordable Care Act limits such credits to those who shop on a state-run exchange.

The Court usually does not explain its failures to act, but there are at least four possible scenarios that could explain the absence of an order Monday on this dispute:

First, it could mean that one or more Justices seemed to simply want some more time to ponder the case, especially since there is at present no split among federal appeals courts on the subsidy question.

Second, it could mean that the case has not drawn the support of four Justices in favor of reviewing the dispute, but that the case was put over to see if more votes might be forthcoming.

Third, it could mean that the Justices just will not take any action on the controversy until a split does develop among federal appeals courts.   The rescheduling for another look this week would not seem to support that prospect.

And, fourth, it could mean that the Court is inclined to grant review, but is simply following in this instance its apparent new policy of not granting any new cases the first time it examines them at a Conference.  This is a policy that emerged last Term, to try to head off the chance that a case seemingly worthy of review turns out not to be on closer examination.

The challengers could draw some potential comfort from that fourth possibility.  They had made an energetic push to get the Court to resolve the issue even if there is no current division on it among the federal appeals courts, arguing that it would be much harder to undo the subsidy system if their position ultimately prevails but that does not happen until after a significant passage of time.

It does seem unlikely that the inaction on Monday could be explained on the theory that the Justices are simply waiting to see what the U.S. Court of Appeals for the District of Columbia Circuit does with a case it is now reviewing en banc.  The Justices do not usually sit on a case just because there is a prospect of some action on a separate case in a lower court.  Moreover, the D.C. Circuit may not decide that case until early next year, at the soonest, and the Court would not be likely to simply keep putting off the case now before it until then.

The next chance for the Court to reveal a reaction to the case would be next Monday, when it releases orders on positions it takes in the Friday Conference.

The Court on Monday took on one new case, but it is one that they are not likely to decide during the current Term.  It is a case that originated directly in the Court itself, rather than in a lower court, out of a dispute between Florida and Georgia over the flow of water from two rivers in Georgia into the environmentally sensitive Apalachicola River in Florida.   The case is Florida v. Georgia.   The Court had asked for the federal government’s view on the case, and the response was that the Court either should not take up the case right away, or should delay any action on it until the Army Corps of Engineers completes a new study on the release of water from federally run dams in Georgia

The Court simply allowed Florida to bring its lawsuit, and gave Georgia thirty days to reply.  The order did not mention the alternative suggestions made by the government.

In another interstate river dispute, the Court on Monday named A. Gregory Grimsal, a commercial law litigator in New Orleans, to serve as Special Master to conduct the equivalent of a trial in the case of Texas v. New Mexico.  The Court last January allowed Texas to file that lawsuit.  The Special Master ultimately will prepare recommendations on how the Court should decide Texas’s claim that New Mexico is using more than its fair share of the waters of the Rio Grande River.  There is no timetable for that report to be made.

Among the new cases the Justices refused to review on Monday was an attempt by members of Congress, private individuals, and the citizen advocacy group Common Cause to challenge the constitutionality of the Senate filibuster rule — the rule that has come to mean that it takes at least sixty votes out of the chamber’s one hundred senators to pass any legislation that is controversial.   Lower courts refused to let that challenge proceed, and the Justices simply refused to hear the appeal.  The case was Common Cause v. Biden.

The Court also declined to reopen the long-running constitutional controversy over who owns church property when a local congregation breaks away from the main denomination.  The case, The Episcopal Church v. The Episcopal Diocese of Fort Worth, grew out of property ownership disputes when local Episcopal congregations in Fort Worth and San Angelo, Texas, split off and took their church property with them.  The split was part of a widespread expression of discontent among more conservative doctrinal elements in local churches, protesting the liberalism of the parent Episcopal Church, including the installation of a gay bishop.

[Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief filed in support of the petitioners in the Episcopal Church case.  However, the author of this post is not affiliated with the firm.]



Recommended Citation: Lyle Denniston, Silence, and speculation, on health care (UPDATED), SCOTUSblog (Nov. 3, 2014, 2:35 PM),