After three election cycles using the interim maps, the district court
ruled that they were flawed. “Although this court had ‘approved’ the
maps for use as interim maps, given the severe time constraints it was
operating under at the time of their adoption,” the court said that
approval was “not based on a full examination of the record or the
governing law” and was “subject to revision.”
The court concluded that Texas’s adoption of the interim maps was part
of “a litigation strategy designed to insulate the 2011 or 2013 plans
from further challenge, regardless of their legal infirmities.”
State officials then filed emergency applications in the Supreme Court,
asking the justices to block the district court’s order until their
appeal was heard. In a
brief order in September, the
Supreme Court agreed. The vote was 5 to 4, with the court’s more
conservative members in the majority.
The new cases, Abbott v. Perez, No. 17-568, and Abbott v. Perez, No.
17-626, join two
voting rights cases already on the court’s docket
concerning partisan gerrymandering.
Internet Sales Taxes
The Supreme Court also agreed to reconsider a 1992 ruling that helped
spur the rise of internet shopping. The ruling, Quill
Corporation v. North Dakota, barred states from forcing companies to
collect sales taxes if they do not have a local physical presence.
States say the ruling has deprived them of tens of billions of dollars
in annual revenue. Brick-and-mortar companies complain that they are put
at a competitive disadvantage when they are required to collect sales
taxes and online companies are not.
Three members of the Supreme Court have indicated that they may be ready
to re-examine the Quill decision.
Justice Anthony Kennedy, in a
concurring opinion in 2015, seemed to call for a fresh
challenge to the ruling.
“It is unwise to delay any longer a reconsideration of the court’s
holding in Quill,” he wrote. “A case questionable even when decided,
Quill now harms states to a degree far greater than could have been
anticipated earlier.”
Justices Clarence Thomas and Neil M. Gorsuch have
alsowritten about
their uneasiness with the decision and the constitutional justifications
for it.
The petition in the new case, South Dakota v. Wayfair, No. 17-494,
asked the Supreme Court to overrule Quill, and 35 states and the
District of Columbia filed a
supporting brief making the same request.
The petition said that a central rationale for the decision — that it
would be burdensome for out-of-state retailers to calculate and collect
taxes for thousands of state and local jurisdictions — has been solved
by modern software.
The defendants in the case, three internet retailers, responded that
“the largest online sellers collect sales tax in all states.”
“Amazon.com, the poster child of online marketing, which accounts for
half of all internet sales and 60 percent of the growth, now collects
sales tax in every state that has a sales tax,” they wrote. “If Quill is
overruled the burdens will fall primarily on small and medium-size
companies whose access to a national market will be stifled.”
In-House Judges
The Supreme Court also announced that it would decide whether in-house
judges at the Securities and Exchange Commission had been deciding cases
without constitutional authorization.
The in-house judges, known as administrative law judges, were appointed
by the commission’s personnel office rather than by the five-member
commission itself. That may have run afoul of the Constitution’s
appointments clause, which requires “inferior officers” to be appointed
by the president, the courts or “heads of departments.” The commission
itself is a “head of department,” while its personnel office is not.
If the in-house judges were “inferior officers,” their appointments were
unconstitutional. If they were mere employees, there is no
constitutional problem.
The Justice Department, which had long contended that the in-house
judges were employees and not officers, switched positions in the
Supreme Court in November 2017. In an unusual move, it
urged the justices to grant review in the case, Lucia
v. Securities and Exchange Commission, No. 17-130, even though it had
won in the appeals court.
The day after the Justice Department request, the commission appeared to
cure the constitutional problem. It
issued an order ratifying the appointments of the
in-house judges. And it instructed judges to give fresh consideration to
pending matters.
The case arose from charges that Raymond J. Lucia and his firm had made
misleading presentations to prospective clients about a retirement
strategy they called “Buckets of Money.”
Mr. Lucia lost before an administrative law judge and the S.E.C., and a
three-judge panel of the United States Court of Appeals for the District
of Columbia Circuit rejected
a challenge to the judge’s authority. The full appeals court agreed
to rehear the case, but its
judges deadlocked 5 to 5.
In a
brief filed last month urging the Supreme Court to hear
the case notwithstanding recent developments, Mr. Lucia’s lawyers said
he would not benefit from the commission’s order.