The Obama administration on Wednesday told a federal appeals court now reviewing the scope of subsidies to help people buy health insurance under the Affordable Care Act that it will soon ask that the case be put on hold while the Supreme Court reviews the same controversy.

The plan came in the form of a motion seeking a delay of a filing deadline in a case in which a federal judge in Oklahoma had ruled that the federal subsidies cannot be provided to consumers who obtain health insurance at a marketplace set up and run by the federal government, but only on such an exchange run by a state government.   The government has now appealed that ruling to the U.S. Court of Appeals for the Tenth Circuit.

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Justice Clarence Thomas, joined by Justice Antonin Scalia, gave a strong hint on Wednesday afternoon that they probably had cast votes to grant review of same-sex marriage cases in recent weeks, but could not persuade enough of their colleagues to do so.

In a separate opinion they issued in a case having nothing to do with the marriage controversy, Justice Thomas wrote that, “for reasons that escape me,” the Court had not agreed to review lower court decisions striking down state bans on same-sex marriage laws.  He cited four denials of review that had occurred on October 6, and two refusals to postpone such lower-court rulings in other states.  In none of those instances had the Court revealed how the Justices had voted, and there were no recorded dissents.

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The Supreme Court on Wednesday afternoon refused to block a federal appeals court ruling striking down an amendment to the Arizona constitution that prohibits the pretrial release of undocumented immigrants charged with serious crimes.

The Court was dealing at this point only with a plea by Arizona officials to delay the ruling at issue, by the U.S. Court of Appeals for the Ninth Circuit, and the order did not give an explanation for refusing that request.  However, two Justices indicated in a separate opinion that the likely reason was that there was no real chance that at least four members of the Court — the minimum number needed — would agree to hear an appeal by the state when it is formally filed.

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Bradley W. Joondeph is the Inez Mabie Distinguished Professor and Associate Dean for Academic Affairs at the Santa Clara University School of Law.

In a lively argument Wednesday, the Supreme Court considered the constitutionality of Maryland’s personal income tax. As explained in the argument preview, the question is whether Maryland’s failure to provide resident taxpayers a credit for taxes they pay other states on the income they earn in those states (at least against the county component of Maryland’s tax) violates the dormant Commerce Clause. At the hearing, a range of concerns surfaced from the Justices. But by the argument’s conclusion, the outcome remained very much in doubt. Continue reading »

Coverage of and commentary on the Court continue to focus on King v. Burwell, in which the Court will consider whether tax subsidies are available to individuals who purchase their health insurance on an exchange operated by the federal government.  At Think Progress, Ian Millhiser provides a layperson’s guide to the case, while in her column for The New York Times Linda Greenhouse criticizes the Court’s decision to review the case as “a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect.”  At The Volokh Conspiracy, Jonathan Adler responds to Abbe Gluck’s post on the grant in King for this blog; he contends that, if the Court limits its inquiry to the text of the ACA, “it should conclude that the IRS tax credit rule is unlawful.”  And in an op-ed for the Los Angeles Times, Rick Hasen suggests that the Chief Justice’s vote in Shelby County v. Holder, in which the Court struck down the formula used to determine which state and local governments must comply with the preclearance requirement of the Voting Rights Act, “suggests he might not step in to save the health law this time.”  At the Notice and Comment blog of the Yale Journal on Regulation, Andy Grewal discusses the role (or lack thereof) of the legislative grace canon in the debate over the case, while at Balls and Strikes Calvin TerBeek considers the possible impact of the Republican midterm victories on the Court’s decision to review the case and the future of the Affordable Care Act more generally. Continue reading »

The petition of the day is:

Wednesday 5:28 p.m.  The following is an updated version of a post that appeared earlier today, taking account of the Supreme Court’s action in the Kansas case.

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The Supreme Court, with two Justices dissenting, on Wednesday afternoon cleared the way for same-sex couples to marry in Kansas — the thirty-third state on the list.  In a brief order, the Court voted to leave intact a federal judge’s order nullifying the state’s ban on same-sex marriages.  There was no explanation, for the order or by the dissenters.

Because the judge’s ruling had been on hold only because of a temporary Supreme Court order issued Monday, the Kansas ruling took effect when the Justices’ new order lifted the earlier postponement.   State officials are now under a federal court requirement to start issuing marriage licenses to same-sex couples.

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By the end of Wednesday’s oral argument in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, it was not clear whether the state of Alabama or challengers to its state redistricting plan would be likely to win the racial gerrymandering claim currently before the Supreme Court. Nor was it clear how the Court would separate permissible partisan gerrymanders from impermissible racial gerrymanders. But the argument left little doubt that, one way or another and sooner or later, Alabama is likely to have a legislative districting plan which helps the state’s Republican legislators and minimizes the voting power of the state’s Democrats and African Americans.

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Over the dissents of five judges, the full U.S. Court of Appeals for the Fifth Circuit refused on Wednesday to rehear the sequel of the University of Texas affirmative action case, Fisher v. University of Texas at Austin.  The order is here.   That decision, supported by ten judges, leaves intact a divided three-judge panel ruling upholding some use of race in selecting the university’s incoming freshman classes.  The panel ruled after the Supreme Court ordered it to take a new look.

A statement by the organization that has arranged Abigail Fisher’s challenge, indicating that the case will be taken back to the Supreme Court, is here.  Ms. Fisher sued the flagship university after being denied admission; she claimed her rejection was due to her race — she is white.

After a Fifth Circuit panel had upheld the university’s first-year admissions program, which made some use of race, the case went to the Supreme Court.   The Justices overturned that decision, finding that the university had not given an adequate justification for the role that race had played in the process.

The Fifth Circuit panel upheld the plan again in July, and Ms. Fisher pursued en banc review by the full Fifth Circuit.  The majority of ten judges did not explain their refusal to vote for further review.  Circuit Judge Emilio M. Garza, who had dissented from the panel decision, wrote a one-page opinion dissenting from the denial of en banc review.  He referred mainly to his prior dissent.

He was joined in dissent by Circuit Judges Edith Brown Clement, Edith H. Jones, Priscilla R. Owen, and Jerry E. Smith.

It is doubtful that the new case will reach the Supreme Court in time to be decided in the current Term, even if review is granted.  Ms. Fisher has ninety days to file for review.

With the Supreme Court set to rule in the current Term on the scope of individuals’ access to subsidies to help them afford health insurance under the Affordable Care Act, the U.S. Court of Appeals for the District of Columbia Circuit decided on Wednesday afternoon to step aside.  In a brief order, the en banc appeals court granted the request of the challengers to hold the case “in abeyance” until the Justices rule.

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