I don’t know how I missed this yesterday. Actually, I do know. I was off the internets for most of the day, and the world kept turning without me.

The D.C. Circuit Court of Appeals granted (Order embedded at bottom of post) en banc (full court) hearing in the Halbig case, in which an appeals court panel found that the IRS had no authority to grant people who signed up for Obamacare on the federal exchange tax subsidies which, under the statute, were only for those who signed up on state exchanges.

The same day as the original Halbig decision was released, the 4th Circuit Court of Appeals reached a different conclusion.

The split in Circuits convinced just about everyone that the case was on the fast track to the Supreme Court.

But many speculated at the time that the D.C. Circuit, packed with Obama appointees, would take the case en banc, uphold the IRS regs, and avoid a Circuit split. I didn’t think that would happen, but I was wrong.

Via Prof. Jonathan Adler at Volokh Conspiracy:

This morning the U.S. Court of Appeals for the D.C. Circuit granted rehearing en banc in Halbig v. Burwell, one of four cases challenging the lawfulness of an IRS rule authorizing tax credits and cost-sharing subsidies for the purchase of health insurance in federal exchanges. According to the challengers, the IRS rule is illegal because, among other things, the PPACA only authorizes tax credits and subsidies for the purchase of insurance on exchanges “established by the State,” and the PPACA expressly defines “State” as one of the 50 states or the District of Columbia.

Oral argument is December 17.

Michael Cannon at Forbes writes, Decision To En Banc Halbig v. Burwell Is Unwise, Unfortunate, And Appears Political:

Today’s decision by the D.C. Circuit to grant en banc review of Halbig v. Burwell is unwise and unfortunate. It has the appearance of a political decision, and will likely only delay Supreme Court review. It does not necessarily presage the outcome of these cases, and I predict that even if the administration wins, it will lose ground before the full D.C. Circuit. But a ruling overturning the Halbig decision will be perceived as political, and understandably so.

The Halbig ruling does not require review. A three-judge panel of the D.C. Circuit correctly applied the law when it held that Congress authorized health-insurance subsidies, as the Patient Protection and Affordable Care Act says, only “through an Exchange established by the State.” The health-insurance Exchanges the federal government established in 36 states were not “established by [a] State,” and there is nothing in the PPACA to suggest Congress understood those words to mean anything other than their plain meaning. The Halbig ruling was authored by Thomas Griffith, a judge supported by President Obama when he was a senator and praised by prominent Democrats for his fair-mindedness.

Peter Suderman at Reason notes:

Does that make this a politicized decision? Well, it’s certainly rare and unusual. The DC Circuit almost never takes this route; last year it reviewed none of its cases. This year, it reviewed two.

I agree that given how politicized everything regarding Obamacare is, this en banc maneuver has the appearance of politics, even if it is not actually politically motivated or a reflection of the new composition of the court. Why not just let it go to the Supreme Court, which is where it was heading?

Halbig Order Granting en Banc Hearing D.C. Circuit


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