Supreme Court

Let’s call the whole thing off

Featured image The starting point of statutory construction is the language of the statute itself. If the words of a statute are clear, they are to be construed according to their plain meaning. See generally Yule Kim, Statutory Interpretation: General Principles and Recent Trends (Congressional Research Service, 2008). If the words of a statue are ambiguous, a court may resort to legislative history and other devices to construe it. The Supreme Court »

Justice Kennedy sends mixed signals during argument on gay marriage

Featured image Today, as I mentioned here, the Supreme Court heard oral argument in Obergefell v. Hodges in which the issue is whether same-sex couples have a constitutional right to be deemed by the state “married” if that’s what they want. Lyle Denniston of Scotusblog filed this report on the argument. The Washington Post’s account is here. The argument confirmed the impression that the decision will be 5-4, with Justice Kennedy casting »

Justice Kennedy and gay rights

Featured image As I begin typing this, the Supreme Court is in the middle of oral argument in Obergefell v. Hodges, the gay marriage case. You can follow the progress of the argument at Scotusblog. Personally, I am not opposed to changing the definition of marriage to encompass same-sex unions. I consider this a low-risk accommodation to the reasonable desires of a large segment of our fellow Americans. But a change of »

Justice Kennedy’s testimony about gridlock harkens back to Obamacare case

Featured image Justice Kennedy made an interesting comment today when he testified to Congress regarding the Supreme Court’s budget. Responding to a question about politically charged issues before the Court, Kennedy stated: We think an efficient, responsive legislation and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes and we say, well, if this is wrong the Congress will fix it. But »

King v. Burwell, the day after

Featured image The consensus following oral argument in King v. Burwell is that the votes of two Justices are in play. Based on the questioning, it seems clear that the four-judge liberal bloc will vote to affirm the decision that Obamacare subsidies may be granted to those using the federal exchange. Justices Scalia and Alito appear set to vote to reverse that decision. Justice Thomas did not ask questions — his usual »

Triumph of the leftist will

Featured image The Supreme Court held oral argument in King v Burwell yesterday. The Supreme Court has posted the transcript of the oral argument here. At issue in King is the legality of the IRS’s provision of tax credits in Obamacare exchanges established by the federal government. As Professor Jonathan Adler writes in USA Today, the case “presents a straightforward case of statutory interpretation.” As such, it’s not a hard case; it’s »

King v. Burwell: a discouraging mid-argument report [UPDATED] [WITH FINAL UPDATE]

Featured image Eric Citron at Scotusblog provides a mid-argument report on King v. Burwell, the vital Obamacare case being heard by the Supreme Court today. According to Citron, the petitioners, who argue that subsidies are not available on the federal exchange faced a troubling question from Justice Kennedy, on whose vote the case may very well turn. Kennedy, says Citron, “expressed deep concern with a system where the statute would potentially destroy »

Talk about working the refs. . .

Featured image Today’s Washington Post features a front page story called “Faces of the subsidies case: For families relying on Affordable Care Act, court ruling could be devastating.” Just above the headline, in a picture that runs nearly the full width of the front page, we see a picture of Erin Meredith — the poster woman for the story — with her adorable five-year old daughter. The picture and the headline will »

Battle station alert on the left

Featured image William Levin is a graduate of Yale Law School, former clerk on the D.C. Circuit Court of Appeals and former special assistant in the Department of Justice, Office of Legal Counsel. He writes to comment on developments related to the Supreme Court’s pending decision in King v. Burwell on the legality of Obamacare subsidies provided via exchanges established by the federal government. Bill assumes that the Supreme Court will get »

Obamacare Benchwarmers Working the Refs Again

Featured image The Wall Street Journal mentions this morning that our now-socialized health care sector is filing panicked Supreme Court briefs in the upcoming King v. Burwell case that emphasize not legal arguments but the disruption to their business model if Obamacare’s state subsidies are struck down. In other words, they mostly submitted policy briefs to the Supreme Court—not legal briefs. I wonder if their lawyers gave them the appropriate policy wonk »

Trust us, we’re the government, Obama administration tells Supreme Court [With Comment by John]

Featured image Earlier this month, the Supreme Court heard a case in which the Obama administration made the extraordinary claim that there can be no judicial review as to whether a government agency met a statutory prerequisite for filing a lawsuit. The case is Mach Mining v. EEOC. The Federalist Society asked me to report on the case via audiotape. My report is here. The Civil Rights Act requires the EEOC to »

Russian Roulette, anyone?

Featured image Some Republican Senators are contemplating an attempt to change the rules for confirming Supreme Court Justices. Under their proposal, confirmation could occur with only a bare majority, as it now can for lower court judges and cabinet members. Lamar Alexander and Roy Blunt are behind the push for this change. I find no merit in it. Sure, the change would make it easier for a Republican president to have Supreme »

Disparate impact’s day in court

Featured image Yesterday, the Supreme Court heard oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The issue presented is whether claims of “disparate impact discrimination” can be brought under the Fair Housing Act (FHA). As I explained here, disparate impact discrimination occurs when a policy disproportionately excludes or injures a particular group and the policy is not shown to be justified by legitimate interests. »

Stephanie Cutter: Gruber was an Obamacare architect

Featured image The question of whether Jonathan Gruber is an architect of Obamacare has, I think, been settled. But in case there’s any doubt, a memo by Stephanie Cutter, President Obama’s deputy campaign manager in 2012, should erase it. According to Patrick Hawley of the Daily Caller, the Cutter memo was prepared in advance of Obama’s first debate with Mitt Romney. In relevant part, it states: So, what’s the net impact of »

A day of reckoning for “disparate impact” housing discrimination cases

Featured image Next Wednesday, the Supreme Court will hear oral argument in a Texas case in which the issue is whether claims of “disparate impact discrimination” can be brought under the Fair Housing Act. The case is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. “Disparate impact discrimination” occurs when a policy disproportionately excludes or injures a particular group and the policy is not shown to be »

Obamacare in 2015

Featured image Tevi Troy says that 2015 is shaping up as Obamacare’s worst year. That’s quite a statement, considering how bad a year it had in 2014 — roll-out problems, false claims of 7 million enrollees, and the defeat of congressional supporters of the legislation. The key challenge to Obamacare in 2015 will come in the Supreme Court. A defeat there would certainly make 2015 a potentially near-fatal year for Obama’s only »

William Levin: The road to repeal

Featured image William Levin is a graduate of Yale Law School. He writes to comment on the Obamacare case pending before the Supreme Court. He argues that “the road to Obamacare repeal runs through through King v. Burwell.” His column makes assumptions that are subject to reasonable argument, such as Chief Justice Roberts’s ultimate position in the current case and the soundness of the Chief Justice’s position in what he calls Obamacare »