Today the Supreme Court issued orders from the justices’ private conference last week. The court added three new hours of argument to its calendar on Friday and were not expected to grant any new cases today, and they did not. But this morning’s order list nonetheless contained big news: The justices denied a motion to fast-track consideration of petitions filed by the U.S. House of Representatives and a group of blue states, asking the Supreme Court to weigh in on the constitutionality of the Affordable Care Act’s individual mandate. In December, the U.S. Court of Appeals for the 5th Circuit agreed with a federal district court in Texas that the mandate is unconstitutional now that there is no longer a penalty for failing to buy health insurance, but the court of appeals sent the case back to the district court for it to consider what parts, if any, of the ACA might still survive. Earlier this month the House and the states came to the Supreme Court, telling the justices that the question is too important to wait for the district court and then the court of appeals to act again before the justices finally have their say. Briefs were filed by the individuals and states challenging the mandate, as well as by the federal government, which has declined to defend the ACA, countering that there is “no emergency” that would justify a departure from the court’s normal procedures, and today the justices turned down the motion to fast-track the petitions.
The denial of the motion means that the responses to the petitions will not be due until February 3, unless that date is extended, and the justices will not consider the petitions until a conference in late February or early March – too late for the court to hear oral argument this term even if the petitions are granted. The denial may reflect a lack of enthusiasm among some justices for tackling such a contentious issue at the end of a term that is already packed with blockbuster cases; it also means that the status of the ACA will remain up in the air throughout the 2020 election season.
The justices asked the U.S. solicitor general to file briefs expressing the views of the federal government in four cases, two of which are consolidated and all of which involve lawsuits in U.S. courts against foreign governments or foreign government officials. In Mutond v. Lewis, the government will weigh in on whether and when foreign officials can be sued in U.S. courts. The lawsuit was filed by Darryl Lewis, a U.S. citizen who was employed as a security contractor in the Democratic Republic of Congo when he was arrested and accused of working illegally as a foreign mercenary. Lewis alleges he was tortured while in custody and is seeking to hold the DRC’s minister of justice and a senior intelligence official there responsible; the U.S. Court of Appeals for the District of Columbia Circuit allowed the lawsuit to go forward. The officials asked the Supreme Court to review two questions: whether plaintiffs can get around the immunity that foreign government officials normally enjoy for their official acts by suing the officials in their personal capacities; and whether the Torture Victim Protection Act, a federal law that allows civil suits in U.S. courts for torture committed by foreign government officials, leaves such immunity for the officials in place.
In Federal Republic of Germany v. Philipp and Philipp v. Federal Republic of Germany, the government will provide its views on whether foreign governments can be sued by their own citizens in U.S. courts under the “expropriation exception” to the Foreign Sovereign Immunities Act, which allows lawsuits in U.S. courts against foreign governments when “rights in property taken in violation of international law are in issue.” The lawsuit arises from the sale of medieval art, at well below its true value, by Jewish art dealers to a bank acting on behalf of the Nazis. And in Hungary v. Simon, the government will weigh in on issues of comity and the Foreign Sovereign Immunities Act in a case brought by former Hungarian nationals to recover property taken from them in Hungary during World War II. There is no deadline for the government to file its briefs. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Hungary v. Simon.]
The justices did not act on other high-profile petitions that they considered last week, including the request by a Washington state florist who is a devout Christian for the court to weigh in on whether she can be required to provide custom floral arrangements for a same-sex wedding, and the clash between California and the federal government over California laws intended to shield immigrants from federal immigration enforcement. The justices’ next conference is scheduled for Friday, January 24.
This post is also published on SCOTUSblog.