Notice & Comment

What the Supreme Court’s Inaction in King v. Burwell (Obamacare Reg Challenge) Means

This morning the Supreme Court issued orders from its October 31st Conference. At this Conference the Court considered the cert petition in King v. Burwell, the challenge to a critical Obamacare regulation that “extend[s] tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1332 of the Patient Protection and Affordable Care Act” (to borrow from the SCOTUSblog issue statement). Yet, the Court took no action in King v. Burwell. [UPDATE: As discussed below, the Court took no action in that it neither granted nor denied the petition, but it did relist the petition for this Friday’s Conference.] What does this mean?
The short answer is that no action was the best possible outcome from today’s orders list for the challengers of the regulation. As John Elwood has chronicled in his terrific Relist Watch Series at SCOTUSblog, the Court appears to have adopted a new practice of waiting (“relisting”) a week after voting to hear the case before actually deciding and publicly announcing that it will hear the case (“granting cert”).  John Elwood has explained that this new practice “may be akin to a ‘stop, look, and listen’ after a provisional decision to grant – intended to give the Justices and their clerks additional time to review grant candidates for vehicle problems or other concerns. Maybe the Justices decided after dismissing three cases as improvidently granted this Term that they need one last check before giving a case the nod….” In other words, the only other action that the Court would have taken today was to have refused to hear the case (“denied the cert petition”).
Of course, there are a number of alternative explanations for the Court’s inaction today in King v. Burwell. Here are a few plausible explanations in rough order of likelihood (likelihood = my speculation based on following the Court’s docket and not much else):
1. Granted, but Cooling Off Policy in Effect: There were at least four votes to grant, and the Court is just following its new practice detailed above. The Court will announce the grant next Monday.
2. Asked for More Time: One or more of the Justices asked for more time to consider the petition before/after the vote, so the case was relisted for the following conference.
3. Voted to Grant but Asked for More Time: This is a variant of the first two scenarios. Here at least four Justices voted to grant the case, but one of the Justices asked as a courtesy to have more time to consider the petition — or, more specifically, to lobby one of the voting members to change his mind.  [I use “his” here, because I’m quite confident Justices Ginsburg, Kagan, and Sotomayor did not vote to grant this petition.]
4. Asked for Time to Draft Dissent from Denial: It is possible that there were not four votes to grant the petition, and that one or more of the Justices who voted to grant asked for more time to draft a dissent from denial of the cert petition to be issued concurrently with the cert denial.
5. Hold for Halbig: In their reply brief, the challengers to the regulation noted in footnote two that “the court should at minimum hold the petition pending the result of the [D.C. Circuit’sHalbig] en banc proceeding, to allow for more expedited review once Halbig is resolved en banc” by the D.C. Circuit. As those following this litigation are well aware, in Halbig a three-judge panel struck down the Obamacare regulation as an impermissible interpretation of the statute. But the D.C. Circuit has since granted the government’s petition for rehearing by the full D.C. Circuit (en banc rehearing). Holding this petition until the D.C. Circuit rules in Halbig– which is months away — seems very unlikely. But stranger things have happened. [UPDATE: As a couple folks have mentioned, if the Court decides to hold a case, the normal course is not to relist it as the Court did here. But it’s still possible — a very remote possibility in my mind — that the Court is leaning toward a hold for Halbig, but wanted to discuss that option again next conference.]
Am I missing any other plausible explanations for the lack of action today? It’s a somewhat safe bet that we’ll have an answer by next week, but John Elwood’s Relist Watch indicates that some cases hang around in the no-action land for a while longer. Again, no action was the best news possible for the challengers today. Not only because the only plausible alternative today would have been a loss (cert denial), but also for the point John Elwood made earlier this morning:

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