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The U.S. Senate yesterday voted 50-43 to confirm Pamela Harris to the 4th U.S. Circuit Court of Appeals, taking the seat vacated by Judge Andre Davis, who assumed senior status in February.

Harris is a Georgetown Law professor and previously served as the Principal Deputy Assistant Attorney General of the Office of Legal Policy at the United States Department of Justice.

Harris moved quickly through the Senate confirmation process after being nominated by the president in May.

Once Harris is sworn in, the court will have its full complement of 15 judges. She will be the fifth woman on the court, and the sixth Obama appointee there — joining four Clinton appointees, three Bush II appointees; one Bush I appointee; and one Reagan appointee.

Here’s a little more about what Harris brings to the court from this article in the New Republic:

Harris’s professional experiences, by contrast, give her a uniqueand exceptionally broadnetwork of professional relationships. She has experience in the corporate law world, as she was a partner at a leading Washington law firm. She has taught at the University of Pennsylvania Law School, Harvard Law School, and now Georgetown. She has served in the government in both the Office of Legal Counsel and the Office of Legal Policy in the Justice Department.  Her experience on the Board of Directors at the American Constitution Society for Law and Public Policy (ACS) gives her unique experience in an organization that is both a public interest and a social movement operation.

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Gay marriage 3

In a 2-1 ruling today, the 4th U.S. Circuit Court of Appeals — which decides appeals from federal courts in  Virginia, North Carolina, South Carolina, West Virginia and Maryland — found Virginia’s ban on same-sex marriage unconstitutional. The precedent from the ruling applies to all of these states.

Affirming a lower court ruling and writing for the Court in Bostic v. Schaefer, Judge Henry F. Floyd said:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

The decision is not effective immediately, though. Per the judgment entered by the court, the ruling will take effect after a mandate is issued in the case — “7 days after expiration of the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, rehearing en banc, or motion for stay of mandate, whichever is later.”

A petition for review by the U.S. Supreme Court may also follow.

Several challenges to North Carolina’s bans on same-sex marriage are working their way through the federal courts, including two cases filed by the American Civil Liberties Union of North Carolina in federal court in Greensboro.

Fisher-Borne et al. v. Smith was filed in July 2013 on behalf of six families across the state headed by same-sex couples as an amendment to a 2012 lawsuit challenging North Carolina’s ban on second parent adoptions.

Gerber and Berlin et al. v. Cooper was filed in April 2014 on behalf of three married, same-sex couples seeking state recognition of their marriages. Because of the serious medical condition of one member of each couple, they are asking the court to take swift action.

“Today’s ruling sets a clear precedent for courts in North Carolina and is the most significant step to date toward securing the freedom to marry for all loving and committed couples in our state,” said Chris Brook, Legal Director for the ACLU of North Carolina Legal Foundation. “Though there is still much work that needs to be done, this ruling has given an enormous boost to our efforts to ensure that all loving and committed couples are able to have the security and dignity that comes only with marriage.”

A third suit, General Synod of the United Church of Christ v. Cooper, was filed in federal court in Charlotte on behalf of same-sex couples and four national religious denominations – the United Church of Christ, the Alliance of Baptists, the Association of Welcoming and Affirming Baptists and the Central Conference of American Rabbis – in addition to Episcopalian, Jewish and Baptist clergy from across North Carolina. The same-sex couples are seeking the freedom to marry and the clergy are seeking the religious freedom to perform wedding ceremonies for such couples. 

“Federal courts in recent months have made clear – emphatically and unequivocally – that it is unconstitutional for state governments to discriminate against loving and committed couples who want the benefits and security that marriage provides,”said Jacob Sussman, lead counsel for plaintiffs in General Synod and partner at Tin Fulton Walker & Owen.

The Court’s  ruling is the third federal appeals court decision upholding marriage, following recent rulings by the 10th Circuit in Utah and Oklahoma.

Utah is in the process of seeking review of the decision involving its law by the U.S. Supreme Court.

Read the Fourth Circuit decision in Bostic here.

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A unanimous panel of the Fourth Circuit in Richmond has upheld the availability of Affordable Care Act tax credits to health insurance purchasers on both state exchanges and the federal exchange.

The decision in King v. Burwell comes just hours after the D.C. Circuit Court of Appeals issued a contrary ruling in Halbig v. Burwell.

Writing for the court, Judge Roger Gregory said:

The plaintiffs-appellants bring this suit challenging the validity of an Internal Revenue Service (“IRS”) final rule implementing the premium tax credit provision of the Patient Protection and Affordable Care Act (the “ACA” or “Act”). The final rule interprets the ACA as authorizing the IRS to grant tax credits to individuals who purchase health insurance on both state-run insurance “Exchanges” and federally-facilitated “Exchanges” created and operated by the Department of Health and Human Services (“HHS”). The plaintiffs contend that the IRS’s interpretation is contrary to the language of the statute, which, they assert, authorizes tax credits only for individuals who purchase insurance on state-run Exchanges. For reasons explained below, we find that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’s determination, however, we uphold the rule as a permissible exercise of the agency’s discretion. We thus affirm the judgment of the district court.

Judge Andre Davis, who took senior status in late February, took the court’s analysis one step further, writing in concurrence that, ambiguity aside, tax credits should be available to all consumers regardless of the exchange on which they purchased their health insurance.

Davis said:

I am pleased to join in full the majority’s holding that the Patient Protection and Affordable Care Act “permits” the Internal Revenue Service to decide whether premium tax credits should be available to consumers who purchase health insurance coverage on federally-run Exchanges. But I am also persuaded that, even if one takes the view that the Act is not ambiguous in the manner and for the reasons described, the necessary outcome of this case is precisely the same. That is, I would hold that Congress has mandated in the Act that the IRS provide tax credits to all consumers regardless of whether the Exchange on which they purchased their health insurance coverage is a creature of the state or the federal bureaucracy.

Davis acknowledged the right of those who challenged the subsidy provision to forego purchasing health insurance on an exchange, but he added this:

What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

In both cases, the decisions may be reviewed by a full panel of  judges in the circuit (en banc), and others are percolating in district courts elsewhere across the country. But a resulting, continuing conflict in the circuits increases the likelihood of a review by the U.S. Supreme Court.

In the meantime, as the Obama administration has indicated, subsidies will continue.

That’s good news for North Carolina residents who purchased health insurance on the federal exchange. (North Carolina did not set up a state exchange). Of the 358,000 who did so, 91 percent (325,000) did so with the assistance of subsidies.

Read the full opinion in King v. Burwell here.

 

 

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The U.S. Court of Appeals for the D.C. Circuit has ruled that tax credits under the Affordable Care Act can only be available to people who enrolled in new exchanges set up in states — not those who enrolled in the default federal program.

Think Progress explains the 2-1 decision in Halbig v. Burwell:

The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchange where their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State.” Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, “a federal Exchange is not an ‘Exchange established by the State,’” and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.

But the fight over this issue is far from over.

As Policy Watch noted last week, the same question is currently pending before the Fourth Circuit in Richmond in King v. Sebelius, with a decision expected any day.

And the ruling from the D.C. Circuit is likely to go to the full panel,  according to Vox:

This decision comes from three judges on the D.C. Circuit. The federal government will probably ask the entire D.C. Circuit — eleven judges in total — to review the decision “en banc.” The court skews to the left (there are seven Democratic appointees and only four Republican appointees) which bodes in the administration’s favor. En banc review probably won’t happen until early fall.

Read the full opinion in Halbig v. Burwell  here.

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With the budget focus still on education cuts and new Medicaid proposals, it’s easy to forget that plenty of other issues remain unresolved in the General Assembly.

Here’s a quick recap of proposed budget provisions affecting the courts and justice system.

Funding for the Administrative Office of the Court  Both the Senate and the House take an ax to system-wide funding of the courts. The Senate cuts technology funding to the courts by $3.7 million and the remaining AOC administrative appropriation by an additional $1.5 million. AOC fares only slightly better in the House budget, which directs cuts of $4.95 million without specifying where.

Cuts to Family Courts  The initial House budget guts Family Courts, eliminating $3 million in funding and 36 positions, a proposal in neither the Senate nor Governor’s budget. The bodies are still in disagreement over that proposal, though the House has since reduced the cuts to just Family Court administrators, eliminating $962,910 and 11 positions.

Legal Aid  TheSenate proposed cutting the court fees passed through the state bar to Legal Services to the tune of $1.8 million. The text providing for these cuts does not appear in the most recent compromise draft of the budget (as of June 13). Both bodies eliminate a $670,000 Access to Civil Justice grant to Legal Aid.

Public Defender  Both the House and Senate cut funds for indigent defense administrative costs, the House by $466,380, the Senate by $233,190 (including the elimination of the Public Defender Administrator).

State Bureau of Investigation/Crime Lab  Both bodies agree on transferring the SBI to Public Safety, but the Senate also wants to transfer the Crime Lab to DPS.

Three judge courts  The Senate also proposed substantive changes to the handling of constitutional challenges to state laws, requiring that all such cases be heard in Wake County by a panel of three judges selected from different parts of the state by the Chief Justice (similar to the process with redistricting challenges).

The Senate would also require that trial court orders temporarily blocking enforcement of a state law challenged as unconstitutional be automatically stayed (meaning that the challenged law remains enforceable while appeals are pursued).  And any such order would be directly appealable to the state Supreme Court – bypassing the Court of Appeals.

The text of these proposals does not appear in the most recent compromise draft of the budget (as of June 13).

For more on the initial Senate budget, read here.

For a further comparison of the Senate and House budgets, read here.