Obamacare on Appeal: Statutory Construction of This Politically Charged Question Will Inevitably Be Called Judicial Activism
In June, I wrote here that law professors should use the Supreme Court’s reversal of a Fourth Circuit opinion (CTS Corp. v. Waldburger) as their case study to teach the complexity of statutory construction. But I fear that a subsequent pair of conflicting, high-profile opinions in the D.C. Circuit and Fourth Circuit construing the Patient Protection and Affordable Care Act (“ACA”) is what many law professors will be using to teach statutory construction. Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014), rehearing en banc granted (Sep. 4, 2014), and King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014), are attractive as important cases that present a pure question of statutory construction, but using them to teach statutory construction runs the risk that students will see statutory construction as a mere euphemism for partisan “judicial activism.” The opinions are best used to instead explore the precarious role of appellate judges in resolving politically charged controversies.
U. Md. Law to Host 4th Cir. Arguments, Wed. Nov. 6th
By Michael Wein
Closer to home than Richmond, the Fourth Circuit is scheduled to hear oral arguments in three cases this week at the University of Maryland School of Law. As noted on the school’s website, the briefs have been made available online, and judge-permitting (and obviously not on any pending cases), there may be some Q & A with the gallery.
[Editor-in-Chief’s note: The Fourth Circuit does not disclose the panel composition until the morning of oral argument.]
Related articles
- Reflecting on Secrecy in 4th Circuit Panel Composition (mdappellate.wordpress.com)
Looking for the Next Big Case
During its past two terms, the Court of Appeals issued several decisions that attracted a lot of attention. It’s hard to know whether any decision this year will draw the same level of interest, but a quick review of the cases to be argued during September and October revealed at least two cases that should prove interesting. Read More…
Maryland Appellate Blog 