Supreme Court Watch



Redistricting commissions and federal health care exchanges are the focus of two important cases now in the hands of Supreme Court justices.

By Lisa Soronen

The Supreme Court heard oral arguments recently in two cases critical to states that challenge the authority of redistricting commissions and the legality of tax credits offered through federally run health insurance exchanges.

Arizona State Legislature v. Arizona Independent Redistricting Commission

Even if this case wasn’t the biggest involving legislative authority that the U.S. Supreme Court has agreed to hear in a long time, the oral argument was bound to be interesting.

It featured two well-mSupreme Court buildingatched opponents, former Solicitor General Paul Clement, arguing for the Arizona Legislature, and former Solicitor General Seth Waxman, arguing for Arizona’s redistricting commission.

At issue is Arizona’s Proposition 106—a citizen’s initiative passed in 2000 that transferred all federal redistricting authority from the Legislature to an independent commission. The court will decide whether it violates the U.S. Constitution’s Elections Clause that states the “times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the Legislature thereof.”

This case will be won or lost depending on how the court interprets the phrase “by the legislature thereof.” Does it mean the body of the legislature or legislative power in general?

Although the oral argument is hardly a foolproof indicator of what the court will rule, it appeared that a majority of the justices were leaning in favor of the Arizona Legislature.

Justice Antonin Scalia asked Waxman where in the U.S. Constitution the framers used the term “legislature” and didn’t mean a state’s governing body.

Justice Anthony Kennedy, noting that legislatures, rather than voters, selected all U.S. senators up until passage of the 17th Amendment in 1913, commented that history “works very much against” the commission’s arguments.

The Supreme Court will decide the case by the end of June.

King v. Burwell

For Justice Anthony Kennedy, it was his questions. For Chief Justice John Roberts, it was his silence.

The Supreme Court also heard arguments in the second case to reach the high court on federal health care reform. The justices will decide whether the subsidies offered to middle- and low-income purchasers of insurance through federally run health insurance exchanges are legal. Challengers argue the law’s wording—“established by the state”—limits the tax credits to state-run exchanges, even though the Internal Revenue Service has interpreted the words to include federal exchanges.

All eyes and ears were on Kennedy and Roberts during the argument. Kennedy is the court’s “swing” justice, and Roberts concluded in the first Supreme Court challenge to the federal law that the individual mandate is a constitutional “tax.”

A key moment came when Kennedy, not once but twice, asked Michael Carvin, the challengers’ attorney: Would a “serious constitutional problem” or a “serious constitutional question” arise if the court concluded that federal exchanges could not offer subsidies? He then questioned whether states would be “coerced” into establishing exchanges to “avoid disastrous consequences.”

Kennedy also questioned the wisdom of giving the IRS the huge task of interpreting this statute when billions of dollars are at stake. The federal government’s attorney, Solicitor General Donald Verrilli, responded that when statutes are ambiguous, agencies must interpret them whether they raise questions big or small.

Roberts asked whether a subsequent administration could change an agency interpretation. But none of Roberts’ questions gave listeners a hint at how he’s leaning.

Justice Antonin Scalia asked the solicitor general whether he really believed Congress would do nothing if the court ruled against the federal government. And Justice Samuel Alito asked why so few of the 34 states with federal exchanges filed a brief supporting the federal government.

The justices face two difficult tasks: determining the best interpretation of the statute and ascertaining the practical problems that could arise if subsidies weren’t available.

Both sides claim federalism is on their side in this case. The justices will give their opinions by the end of June.

Lisa Soronen is executive director of the State and Local Legal Center.


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