On Friday, August 1, the Obama Administration filed its much anticipatedpetition
for rehearing en banc
with the D.C. Circuit in Halbig v. Burwell
. The petition asks for the full D.C. Circuit bench to reconsider and overturn the original ruling by the three judge panel based on a what the Administration has characterized as a misconstruction of the statutory language at issue.
The D.C. CircuitaEUR(TM)s three judge panel determined that the Affordable Care Act provision permitting subsidies unambiguously restricts its applicability only to state-based insurance exchanges and not to federal-based insurance exchanges. This petition to rehear came only one day after the plaintiffs in King v. Burwell
petitioned the United States Supreme Court for certiorari, seeking to overturn the 4th
CircuitaEUR(TM)s ruling on the same issue. The 4th
Circuit, creating a split between the two circuits, held that tax credits were available regardless of whether the consumer obtained federal or state-based insurance.
The petitioners in Halbig
rely on the lone dissenting opinion and argue that the original ruling did not account for the context of the overall statutory scheme. Put plainly, they argue that Congress enacted the ACA to increase the number of Americans covered with health insurance, and the D.C. CircuitaEUR(TM)s denial of tax credit to millions of Americans is wholly inconsistent with that objective. The petition states the
text, structure, and purpose of the ACA make clear that tax credits are available to consumers aEUR~regardless of whether the Exchange on which they purchased their health insurance coverage is a creature of the state or the federal bureaucracy.
Only 14 states have and the District of Columbia have set up their own exchanges, meaning, that if the D.C. CircuitaEUR(TM)s ruling were to carry the day, the millions of Americans across 36 states receiving health care through federal-based exchanges would lose their subsidies.
In light of the 4th
CircuitaEUR(TM)s ruling and the subsequent petition for certiorari, the petitioners argue this is a question of immediate concern and aEURoeexceptional importance,aEUR? thus, requiring en banc consideration. In the interest of timely adjudication, the court followed-up the petition by ordering the plaintiffs to file their response within 15 days, and not exceed 15 pages
If the D.C. Circuit decides to grant the petition and re-hear the matter, the Democrat-appointed judges will have a three seat advantage. Additionally, four of the eleven judges that would re-hear it were appointed by President Obama. An overturning of the original ruling would eliminate the split in opinion among the circuits, potentially having a substantial effect on the Supreme CourtaEUR(TM)s determination on whether to grant certiorari to the challengers in King