Full D.C. Circuit will rule on health care subsidies : SCOTUSblog

So if my last post concerning the ACA wasn't confusing enough (I'm still trying to determine if what I wrote made any sense) here comes another round of flip-flop-orama.

In this case we are dealing with a re-hearing of Halbig v. Burwel, a case concerning a technicality in the language used in the Affordable Care Act ",,,through an Exchange established by the State under section 1221 of the Affordable Care Act." It is comparable to how some (myself included) use the words "the church" to refer to all of Christendom as opposed to a specific denomination. Or "the State" when referring to an aspect of government.It is an argument of semantics, a nit pick.

Some are troubled that a legal claim, once seen as a long shot, has gained such traction. Topher Spiro, a former Senate health policy staffer now at the Center for American Progress, said he viewed the lawsuits as "silly, not to be taken seriously."

"Other than a few right-wing activists, no one thought this was a legitimate challenge," he said.

Simply put, the issue is whether Congress intended the subsidies to be available to both the people who lived in states that set up state-based exchanges and the people who lived in states that had federally-based exchanges.

So what does this mean?

Well, there have been four challenges to the ACA: King v. Burwell, Halbig v. Burwell (cited above) and cases in Indiana and Oklahoma that have been heard but no rulings have been issued. The issue, both the Halbig and the King rulings came out on the same day and they conflict.

Two federal appellate courts on Tuesday handed down conflicting rulings on whether the government can subsidize health insurance premiums for millions of Americans who live in states that rely on the new federal health insurance marketplace to enroll in coverage.

The U.S. Circuit Court of Appeals for the District of Columbia Circuit, in a 2-1 decision, ruled that the tax credits provided under President Barack Obama’s health care law can be offered only to states that set up their own marketplaces.

Two hours later, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., upheld the legality of the subsidies, saying that a rule issued by the Internal Revenue Service to allow the subsidies nationwide was a “permissible exercise” of the agency to interpret ambiguous language contained in the 2010 federal health law.

And that brings us to the subject of the attached article,,,

By granting further review, the D.C. Circuit has raised the chances that the administration will win in that court, as it did previously in the U.S. Court of Appeals for the Fourth Circuit. If there is then no conflict among appeals courts on the question, that could reduce the chances that the Supreme Court would feel a need to step in. However, the issue is pending in other lower courts, so a conflict remains a possibility.

The controversy has already reached the Justices in the case of King v. Burwell, in a petition filed by challengers to the subsidies seeking to overturn their defeat in the Fourth Circuit. The government has not yet replied in that case; this week, it received an extension until October 3 to file its response brief.

It is unclear at this point whether the D.C. Circuit’s grant of en banc review of the subsidies question will have any effect on the Supreme Court’s consideration. The Justices might opt to wait to see if a conflict in lower court exists, but they also could go ahead and grant review of the pending case. That would proceed more slowly than will the new review in the D.C. Circuit, however.

Full D.C. Circuit will rule on health care subsidies : SCOTUSblog