News just came down this afternoon that the Supreme Court has granted certiorari in King v. Burwell (No. 14-114), to decide whether the subsidies provided by Obamacare for the purchase of health insurance policies are available on the federally operated Healthcare.gov exchange, or only on state-established exchanges in those states that have one (a diminishing number, given that several of those states’ exchanges collapsed and the architect of one of them, Maryland Lieutenant Governor Anthony Brown, was defeated in a stunning upset on Tuesday). Thus, the practical import of the case could be enormous across 36 states that lack a state-run exchange.
I and others at RedState have covered the legal arguments extensively, and will doubtless do so further – you can read my analyses here, here and here. The case basically turns on the statutory argument over whether an exchange “established by the State” includes an exchange established by the federal government when a State refuses to do so; the statute defines the term “State” to include the 50 States and the District of Columbia. As you can imagine, this creates some problems under governing legal standards for the Administration’s argument.
If you haven’t followed the procedural twists and turns, what happened is that a divided 3-judge panel of the D.C. Circuit ruled in the Halbig case in July that the plain language of the statute means what it says, and subsidies are only available on State-established exchanges. Another 3-judge panel of the Virginia-based Fourth Circuit issued a ruling a few minutes later in the King case reaching the opposite conclusion. The Administration, having stocked the D.C. Circuit with recent appointees with this case in mind (these were the judges Sen. Harry Reid (D-NV)Heritage ActionScorecardSen. Harry ReidSenate Democrat AverageSee Full Scorecard11% rammed through by disabling Republicans from using the filibuster) called for and got the full court to re-hear the case en banc, i.e., not just the 3-judge panel but all the active judges on the D.C. Circuit. The King plaintiffs preferred to skip en banc review (which is something of a rarity and not a required step) and filed straight with the Supreme Court. The Court, by granting certiorari, effectively moots the D.C. Circuit’s en banc consideration of the question, and ensures that the …read more