ACA government debts edition
The ACA was before the Court, yet again. To encourage private insurers to participate in online health insurance exchanges, the ACA provided that the federal government would share in insurance company losses for 3 years.25 The Act, however, did not appropriate any money for these “risk corridors,” and insurance companies lost $12 billion.
Congress (after the 2010 election) prohibited any appropriated funds from being used to pay insurance companies for their risk corridor losses. Four insurance companies sued the United States, seeking reimbursements for their losses. This term the Court held that the government must pay for their losses under the ACA.26 The Court said that Congress could have expressly repealed the risk corridor obligation (in the appropriation bill), but instead had only prohibited the expenditure of the money, which the Court said did not amount to an implied repeal of the obligation. We will see that ACA will be back before the Court again next term in California v Texas (discussed below).
Child custody and international abduction
The Hague Convention on the Civil Aspects of International Child Abduction (to which the United States is a party) provides that the courts of the country where the child has “habitual residence” have jurisdiction to decide custody.27 If a parent takes the child to another country, that country is obligated to return the child to the country of “habitual residence.”
This term the Court was called upon to define “habitual residence.” The Court held that determining habitual residence depends on the “totality of the circumstances,” and that “locating a child’s home is a fact-driven inquiry,” and that “courts must be sensitive to the unique circumstances of the case and informed by common sense.”28 An exception to the Convention’s obligation to return a child to the country of habitual residence is where “there is a grave risk that [the] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”29 Who the parent is can affect many aspects of legal authority over the child, including consent to medical care, and the right to receive information concerning care.
Analysis of the term
The term began October 7, 2019, and adjourned July 9, 2020, somewhat later than usual because of coronavirus disease 2019 (COVID-19). During the term, the Court decided 60 cases, including 53 “signed” merit opinions after oral argument—the lowest number of decided cases in many years.30 Of those 60 cases, 22 (35%) were unanimous, and 13 (22%) resulted in a 5-4 split.30 Ten-year averages are 48% unanimous and 20% with 5-4 decisions.30
Chief Justice Roberts was the central focus of the term. He presided over the impeachment trial of President Trump in the Senate early in the term. He also presided over the Court’s accommodations of the COVID-19 pandemic. He is the “median,” or “swing,” justice. He was in the majority in 12 of the 13 cases with 5-4 decisions.30 He was in the majority in 97% of all cases and in 95% of “divided cases”—the highest of any of the justices this term.30 In some of the most critical decisions, Chief Justice Roberts sided with the “liberal” wing, including on cases concerning abortion, gay and transgender employment, DACA, and 2 Presidential subpoena cases. More often (in 9 of the 5-4 decisions), however, he sided with the more conservative justices.30 Justice Kavanaugh agreed with Chief Justice Roberts most often (in 93% of all cases).30 Among the others, these justices agreed with each other 90% or more of the time: Justices Ginsburg and Breyer (93%), Justices Alito and Thomas (92%), and Justices Breyer and Kagan (90%).30
Continue to: COVID-19 and the Court...