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Justices will hear argument in ACA case one week after Election Day

The Supreme Court on Wednesday released the calendar for the November argument session, which will include the latest challenge to the Affordable Care Act and a clash between religious liberty and LGBTQ rights. Over five days between Nov. 2 and Nov. 10, the justices will hear eight hours of oral argument in nine cases. On the day after the Nov. 3 presidential election, the justices will hear a challenge to Philadelphia’s exclusion of a faith-based agency from its foster-care system because the agency will not work with same-sex couples. One week after the election, the justices will hear the two consolidated ACA cases, which ask whether the law’s individual insurance mandate is unconstitutional without a tax penalty and, if so, whether the rest of the law can remain standing. Notably, the foster-care case and the ACA cases are the only cases scheduled on their respective days, giving the justices some flexibility to extend the argument past the 60 minutes currently allotted to each. In the ACA challenge, the U.S. House and a pair of states (Ohio and Montana) have asked the justices to grant additional time for the oral argument; the court has not yet acted on those requests.

The cases scheduled for argument during the November session are below:

United States Fish & Wildlife Service v. Sierra Club (Nov. 2): Whether the “deliberative process” privilege protects draft documents that the USF&WS and the National Marine Fisheries Service created as part of a formal consultation process under Section 7 of the Endangered Species Act.

Salinas v. U.S. Railroad Retirement Board (Nov. 2): Whether, under federal laws governing benefits for railroad workers, the Railroad Retirement Board’s denial of a request to reopen an earlier benefits determination is a “final decision” subject to judicial review.

Jones v. Mississippi (Nov. 3): Whether the Eighth Amendment’s ban on cruel and unusual punishment requires a sentencer to find that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

Borden v. United States (Nov. 3): Whether a criminal offense that can be committed merely by being reckless qualifies as a “violent felony” for purposes of the Armed Career Criminal Act.

Fulton v. City of Philadelphia (Nov. 4): Whether the city violates the First Amendment when it makes participation in the city’s foster-care system by a faith-based agency contingent on actions and statements by the agency that conflict with the agency’s religious beliefs, and whether the court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce laws that burden religious beliefs or practices as long as the laws are “neutral” or “generally applicable.”

Niz-Chavez v. Barr (Nov. 9): Whether all of the necessary information about a scheduled removal proceeding must be provided in a single document to trigger the “stop-time” rule, which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation, or whether the government can trigger the rule by providing the information in multiple documents.

Brownback v. King (Nov. 9): Whether a final judgment in favor of the United States in a lawsuit brought under the Federal Tort Claims Act bars a claim against a government employee based on Bivens v. Six Unknown Named Agents, in which the Supreme Court allowed a lawsuit seeking damages from federal officials for violating the Constitution to go forward.

California v. Texas and Texas v. California (consolidated for one hour of argument on Nov. 10): Whether the Affordable Care Act’s requirement that virtually every American obtain health insurance is constitutional and, if not, whether the rest of the ACA can survive.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices will hear argument in ACA case one week after Election Day, SCOTUSblog (Aug. 19, 2020, 3:00 PM),