On Saturday I gave an overview of New Hampshire v Massachusetts, a major state-state case that is currently in the Supreme Court. It was at that time that I noticed that we may already know how the Supreme Court was going to handle the case, as that is the day the Court would issue orders in relation to cases due on Friday January 22nd Conference went (including this one).
In fact, the only step the Court took today in the case was to issue an order requesting the Acting Attorney General “to file a brief in this case expressing the views of the United States”. Of course, this is only a very modest step. However, it does suggest that the court is taking the case seriously and is unlikely to be dismissed immediately, as has been the case with a number of previous jurisprudence cases, such as the “Texas Turkey” trial last month, the Election results reverse some key swing states.
It will also be interesting to see where the Biden administration comes in on the case. Typically, Democratic administrations often advocate the interests of the high-tax blue states, which could mean supporting Massachusetts’ efforts to tax remote workers who are employed by firms in Massachusetts but work in other states. But as the Amicus letters show, the blue states are actually divided in this case, and Connecticut, New Jersey, and Hawaii are joining a letter backing New Hampshire. The latter is itself a purple state slowly trending blue and a potential swing state in presidential and senate elections.
One potential problem for the administration would be to avoid commenting on the substantive issue but arguing that New Hampshire is not entitled to raise the case. That might be attractive to them too, because red states might find it harder to sue the Biden government themselves if they curtail the state’s status. I hope they don’t go that route, but it is certainly possible.
Historically, political liberals have often preferred loose rules, while conservatives have preferred stricter rules. This pattern has gotten mixed up in recent years, however, as both the right and left often take opportunistic positions while standing depending on whose ox is being eaten in a particular case. I myself have long advocated the complete abolition of permanent requirements, and I have held this view during both Democratic and Republican governments. But I admit that my position is unlikely to take hold anytime soon.
Whatever the administration decides, it looks like this case is unlikely to go away anytime soon. The Tribunal has been looking into this for many weeks and it is becoming increasingly likely that they will hold a full hearing.