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Posted on 11/03/2014 12:09:33 PM PST by right-wing agnostic
On Friday, the justices of the Supreme Court held a conference to review petitions for certiorari and other procedural matters. Among the most-watched petitions before the justices was that in King v. Burwell, a challenge to the legality of an IRS rule authorizing tax credits for the purchase of health insurance in federally established exchanges. This morning, the Court released the order list from the conference, and King was absent. Rampant speculation about what this could mean ensued. (See Chris Walker’s walk through the possibilities here.) Shortly thereafter, a notation on the King docket indicated that King has been relisted for this Friday’s conference. According to avid court-watchers, this likely means that the justices are continuing to give this case some consideration, and the odds of a cert grant appear to have gone up. According to John Elwood, the likelihood that a typical cert petition will get granted is in the 2-4 percent range, whereas the odds for a relisted petition climb to 45 percent.
(Excerpt) Read more at washingtonpost.com ...
What does this mean in English?
Sounds like it means the Court will be asked to rule on a narrower, more technical question that bears on the legality of ObamaCare.
The Court was not willing to summarily throw the whole mess into the garbage can. They did, however, (IIRC) signal their willingness to look at individual aspects of the law once those aspects had been argued through the lower courts.
There are many of these aspects, and this one is important because it goes to the issue of what is a tax. This question, as I understand it, brings Constitutional issues into the discussion.
Also keep in mind the "non-separability" aspect of ObamaCare. If any one piece of it is excrement-canned, the whole thing goes down the chute.
Unless the Executive branch decides to ignore that. Then it will take years to go through the courts on that matter.
CLOSE call. I think they may wait to see what the full Circuit does in an en banc hearing.
“grant certiorari” basically means the court is taking the case.
That they didn’t say today they would or wouldn’t means they’re still looking at the merits of taking it, instead of just rejecting it outright (like >96% of all submitted cases). That they’re continuing to look at it means it’s got about a 50/50 chance of being accepted, though probably with some modifications (some cases would be rejected outright as submitted, but contain some element that the Court feels must be addressed, so they trim it accordingly).
SCOTUS.
Certiorari means the Supreme Court will hear the case.
This case is important because if the plaintiffs prevail, then obamacare goes bye-bye. It will at least be shut down in 34 states if plaintiffs prevail and it is doubtful to survive if only 16 states are implementing it.
”… a challenge to the legality of an IRS rule authorizing tax credits for the purchase of health insurance in federally established exchanges."
FR: Never Accept the Premise of Your Opponent’s Argument
Legal technicalities concerning Obamacare Democratcare aside, regardless what activist justices want everybody to think about the constitutionality of Democratcare, let’s not overlook that the states have never delegated to the feds, expressly via the Constitution, the specific power to regulate, tax and spend for intrastate healthcare purposes. This is evidenced by the following excerpts from Supreme Court opinions.
”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. [emphases added]” —Gibbons v. Ogden, 1824.
“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” —Justice John Marshall, Gibbons v. Ogden, 1824.
“Inspection laws, quarantine laws, health laws of every description [emphasis added], as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass.” —Justice Barbour, New York v. Miln., 1837.
“Direct control of medical practice in the states is obviously [emphasis added] beyond the power of Congress.” –Linder v. United States, 1925.
In fact, constitutional experts have historically noted that the states entrusted themselves, not the federal government, with the care of the people.
...and just to elaborate on that, most cases are on the agenda for one conference, at which the court will decide either to hear it or not to hear it. In very rare instances [and this case is one of them], a case will be on the agenda for one conference, but not decided either way, and is "re-listed" for the next conference. That means that at least one justice, but less than four, wants to hear it, and that other justices haven't made their mind up one way or the other and want to think about it, or discuss it, some more.
Bookmark.
Thanks—that’s new information for me: 0>JJ<4. I hadn’t given any thought to, nor read anything about, the mechanics of those conferences. However, couldn’t it also be on occasion that for some unrelated reason they simply didn’t address it at all during the first conference?
Possibly, yes, but unlikely. There are a huge number of cases on the agenda for every conference, but most of them are not discussed at all-- before each conference, each justice circulates a list of cases that they actually want to talk about. Roughly 90% of cases aren't on any justice's list, so they're "dead listed"-- they aren't discussed, and an order denying cert. is issued automatically.
So we know for a fact that at least one justice wanted to talk about this case. We also know for a fact that there were not four votes to grant cert., or cert. would have been granted. So my gut tells me that there were 1-3 votes for cert. and one or more justices who said, "maybe, let me think about it."
It's possible that the conference went on for so long that they just didn't get to this case, but I don't think that happens often.
Since you seemingly already have insight into the Court's inner workings, perhaps you'd be kind enough to answer this followup question that your explanation inevitably raises: do Justices make it a practice to discuss these cases privately in sub-groups prior to the conferences, as one would expect, or is there some rule forbidding it that is actually observed? I came at that by wondering what effect it would have, if any, on the assemblage of four votes for a case to show up on the lists of multiple judges.
I have no inside knowledge, I assure you, but I have read the Court's rules and a lot of what's been published about the Court. You can get a lot of this kind of info just from reading SCOTUSBlog.
perhaps you'd be kind enough to answer this followup question that your explanation inevitably raises: do Justices make it a practice to discuss these cases privately in sub-groups prior to the conferences, as one would expect, or is there some rule forbidding it that is actually observed?
I have read about intra-chambers discussions before the conference (i.e., most justices will discuss the case with their clerks). I have also read about private discussions between justices after a case is argued, as one bloc or the other tries to pull together a majority. I have never read about pre-conference private discussions, but I am aware of no rule against it, and it wouldn't surprise me if it happened. In fact, that's the only way I can explain the failure to grant cert. in any of the gay marriage cases-- Scalia, Thomas, Alito (and possibly Roberts) all got together and said, "let's vote against cert., we can't trust Kennedy," and Kagan, Sotomayor and Breyer got together and said, "let's vote against cert.-- the country will be more accepting of gay marriage if we put this off for a year or two."
Thank you exceedingly!
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bkm
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