There is still more commentary on Monday’s decision in Zivotofsky v. Kerry, holding that the president has exclusive power to grant formal recognition to a foreign sovereign. Marty Lederman has a series of four posts on the case at Just Security, where he discusses “the Chief Justice’s dissenting opinion, and the question of whether, and to what extent, Zivotofsky is a departure from the Court’s historical jurisprudence”; whether and how Menachem Zivotofsky had standing to bring his lawsuit; the “three important propositions” on which eight of the nine Justices actually agreed; and Justice Thomas’s separate opinion in the case. At The Faculty Lounge, Calvin Massey contends that the Court’s decision “provides an illustration of how the Supreme Court can make poor decisions.” Edward Swaine analyzes the decision for the George Washington University Law School’s On the Docket blog and concludes that, “[i]f the Court cares about the broader issue, it might have been better for it to decide—if it chose to enter into the controversy at all—whether Congress truly enjoys the capacity to ‘infringe on the recognition power’ in a way that matters for these myriad variants.” And at Boyle’s Laws, David Boyle focuses on the Chief Justice’s dissent in the case.
Commentary on the Court’s upcoming decision in King v. Burwell, the challenge to the availability of subsidies under the Affordable Care Act for individuals who purchase health insurance on an exchange created by the federal government, continues. In a series of posts at Cato at Liberty, Michael Cannon argues that the president is “correct” that the case “is not about the Affordable Care Act. It is about the president doing an end-run around the law and the voters”; he also contends that the president’s recent comments on the case are “part effort to influence the” decision, and “part effort to spin a potential loss” in the case. And Ilya Shapiro looks ahead at what the Obama administration “will do if the government does indeed lose” the case. Finally, at his Election Law Blog Rick Hasen weighs on the president’s comments themselves, and in particular whether they are appropriate when the case is pending before the Court; he concludes that the president should speak up on pending decisions more often.
At IMLA’s Appellate Practice Blog, Lisa Soronen discusses Monday’s cert. grant in the class action case Tyson Foods v. Bouaphakeo. She observes that the case “presents a classic legal dilemma: two lines of cases, one older and one newer, neither exactly on point. Which will the Court pick or will it craft a new test?” And the editorial board of the Washington Examiner weighs in on both the grant and another class-action case that the Justices considered at their Conference yesterday; the board contends that each case “represents an opportunity for the Supreme Court to show that it is really serious about preserving the integrity of the class action system.”
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