The Obama Administration Gets Its Wish In Legal Challenge to Obamacare Subsidies



This morning, the DC Circuit decided to grant an en banc review of the case of Halbig v. Burwell, which challenges the legality of the administration's decision to allow subsidies within Obamacare's federal exchanges.

This is what the administration wanted, and what challengers had hoped to avoid. A three judge panel in the DC Circuit had previously ruled against the administration, accepting the argument made by challengers that the law's subsidies are not authorized. The decision to go back to the full court for a rehearing immediately vacates the earlier ruling against the law. 

Basically, the court decided to start over, but this time with the whole court involved rather than just the original three-judge panel.

This is what the administration had asked for. The whole court is seen as much more likely to be sympathetic to the administration's arguments following Senate Majority Leader Harry Reid's decision to pursue the nuclear option last year with regard to judicial appointments. There are now seven Democratic nominees, and just four judges nominated by Republicans. 

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.

As Adam J. White, an attorney who helped file an amicus brief on behalf of challengers in the case, wrote in The Wall Street Journal last month, an en banc review like the one announced today represents a "sharp break from history." 

The low [en banc review] numbers are thanks to the court's high standard, found in the Federal Rules of Appellate Procedure: En banc rehearing "is not favored and ordinarily will not be ordered" unless the case satisfies one of two standards. First, an en banc rehearing may be needed to "secure or maintain uniformity of the court's decisions." A three-judge panel is not allowed to overrule old precedents, even when precedents are in conflict; only the full court can do so, en banc.

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of "exceptional importance." For the D.C. Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court's own workings also can be deemed of "exceptional importance." In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig checks none of these boxes. It is a straightforward statutory interpretation case. The administration's supporters seem to believe that Halbig has "exceptional importance" because the Affordable Care Act is exceptionally important to them and the panel's decision was, in their eyes, wrong.

The challengers wanted the case to go directly to the Supreme Court, arguing that it's critical to get a timely resolution to the question of whether or not the subsidies doled out through the federal health exchange are legal. An en banc review means that, at minimum, a High Court hearing will have to wait. And it's possible that it could discourage the Supreme Court from taking a crack at it. Either way, though, as Case Western Reserve Law Professor Jonathan Adler recently noted, it may not be final; there are are still two additional challenged to the subsidies rule in the works.  

NEXT: D.C. Circuit Orders Rehearing of Obamacare Tax Credit Case Halbig v. Burwell

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  1. Apparently there is a third standard for invoking en banc: Judicial Activism.

    1. Yes, they need the full complement of liberal judges to decide that the law allows that which it clearly does not.

      1. What it was written specifically not to allow as well.

        The progs are still calling it a typo.

        1. Yeah, and those videos of the architects of ACA explaining how the law only provides subsidies to state exchanges, not federal, as an incentive to the states to implement exchanges?

        2. The progs are still calling it a typo.

          The 2nd amendment thing too?.just a typo.


        3. Calling it a typo is irrelevant anyway. The law says what it says. If Congress thinks it’s a typo they are free to change the wording at any time. Until then you have to interpret the law as written. Otherwise, you’re entering Tony territory, also known at 1984.

        4. What WTF said. They have videos of the Max Bachus and the staffer who are credited with creating the entire bill. And both of them said the same thing; the provision was put in there to make the states create their own exchanges so their citizens wouldn’t lose federal subsidies. It was not a typo. There is not a rational argument for it being so. They put it in there thinking it would force the states to create their own exchanges. Now that the states said no, they want the courts to read it out of the law as a “typo”. Every time you think these people can’t get more mendacious, they prove you wrong.

          1. And the courts will allow it, because fuck the rule of law, so long as they get their pony.

            1. For a lot of judges yes. But I think the SCOTUS will over rule the DC Circuit. There just isn’t any argument to be made in favor of this other than “save Obama’s sorry ass”.

              1. I don’t know, I thought it was pretty obvious that there was no real argument to be made in favor of the federal government to even implement the ACA, and then Roberts gave us the ‘penaltax’.

              2. But what is the path to even get this to SCOTUS review? If the en banc goes the way we think it will there will be two concurring opinions on the matter. How would SCOTUS then decide to review it anyway, and who makes that decision (is it the whole SCOTUS or just a committee?)

                1. Good point, the DC circuit is likely reviewing en banc to avoid two conflicting decisions and thus try to keep it from being taken up by the Supremes.

                2. The path to review is the losing side files a Writ of Certerari to the SCOUTUS and the SCOTUS accepts the case. I forget how many justices it takes to grant cert. But it is less than a majority. I imagine that the right wing justices will be enough to get cert granted and get this thing reviewed.

                  1. I don’t know, they refused to grant certiorari in Drake even though it is in conflict with two other circuit decisions, likely because they wanted to avoid the politics of it. I can see the same happening here.

                  2. You mean the constitutional judges.

        5. SugarFree|9.4.14 @ 10:46AM|#
          ‘The progs are still *lying through their teeth*’.


  2. Gotta love the kangaroo court system lol.


    1. Your comment is a disservice to kangaroo courts around the world. Kangaroo courts are much more fair and just than the American Judicial System.

      1. Billy you are responding to a spam bot.

        While he is certainly growing sentinent I don’t believe he is at conversational level yet.

        1. He’ll pass the turing test long before butt plug though.

          1. Palin’s or Obama’s?

  3. Who is surprised by this?

  4. I think they know they are going to lose this at the Supreme Court. The idea is to get a friendly ruling at the DC Circuit which will allow them they hope to delay the ultimate judgement by the Supreme Court until after the 2016 elections.

    I don’t think it will work. I bet the SCOTUS rules on this summer of 2015 and drops it like a rotten watermelon into the Presidential campaign.

    1. J-Rob will rule it a penal-typo-tax, and the ACA will lumber on.

      1. I don’t think so. You can count on J-Rob to do whatever he thinks will make him liked. I think he has been stung by how much people hate him for the penaltax ruling. I bet he goes the other way this time. Sometimes a total lack of personal integrity can work in your favor.

        1. I hope you’re right, I guess I’m just more pessimistic than you. If they do rule in favor of the feds, then any last fiction of the remainder of the rule of law is completely destroyed.

          1. I probably should be pessimistic too. I guess I just like being kicked in the nuts or something.

    2. What do you mean “watermelon”???


      1. No, don’t worry, its the watermelon with the white seeds inside.

    3. Summer 2015, I was wondering.

      When it comes to these judicial matters, I’m nine years old and screaming in the back seat, “Are we there yet? Are we there yet? Are we there yet?”

      Always takes forever.

  5. Does that make this a politicized decision?

    I’m stumped.

  6. Anybody else remember when Roberts flipped, in part, because he was concerned about the Court’s reputation?

    Has there been another case in recent memory that has done more to challenge the Court’s reputation with average Americans than ObamaCare?

    They’re still doing back flips to somehow make it okay!

    Citizens United didn’t damage the reputation of the Court as badly as ObamaCare. Kelo didn’t damage the reputation of the Court with average Americans as badly as ObamaCare.

    …and now it’s making a mockery of the DC District Court, too.

    I don’t know how Roberts sleeps at night.

    1. With the knowledge that he has a job for the rest of his life?

      1. He had that before!

        Hell, I haven’t been out of work for more than a week or two since I was 14 years old.

        He wants to be a good justice–he was just horribly, horribly wrong about this.

        God damn demon possession is what it was. His body was taken over by Illuminati lizard men? Either of those explanations make more sense to me than the idea that making me eat broccoli was somehow going to save the Court’s reputation!

        1. Roberts wants to be liked Ken. He thought that ruling properly would cause people not to respect the Court or him. So he attempted to give everyone what they wanted and wound up being hated by everyone.

          1. I wonder if he has the balls to overrule himself…

            Average Americans don’t respect people who admit they were wrong–but I do!

            1. I think avg Americans do.

              Thats why apologies go over so well.

    2. How many average people even heard about Kelo? And Citizen’s United was an actual good decision, just highly politicized. Everyone knows about Obamacare, though.

      1. “And Citizen’s United was an actual good decision, just highly politicized.”

        I agree, but the progressives have been screaming about the Koch brothers ever since. It was wildly unpopular and seen as illegitimate among the left–but nowhere near as unpopular as ObamaCare was and is (and seen as illegitimate) by libertarian/Tea Party types on right.

        That’s my point. If Roberts was trying to save the reputation of the Court, he achieved the exact opposite. I don’t know what world he lives in, that the Court’s reputation is somehow enhanced by subverting the Constitution and subverting the Court’s role in protecting average Americans from government abuse–but that seems to be what he thought!

        You got better examples of other cases in recent memory that have made people (on whatever side of the political spectrum) question the legitimacy of the Court? I’d love to see them.

        …and I bet they, too, didn’t do as much to make people question the legitimacy of the Court like the ObamaCare decision on the individual mandate did.

        1. Sorry, I was agreeing with you, Ken. I see now that it doesn’t read that way, though…

        2. Well I like Sandra Day O’Connor’s idea that if you put the Constitution aside for 25 years then maybe you can come back to it with regard to racial preferences. But only if you get the results you wanted.

    3. Roberts is almost a figure out of a Greek Tragedy. Here is a guy who in law school made sure he didn’t write anything controversial that could some day make getting confirmed to the Supreme Court harder. He spent his entire life with the single purpose of being liked and accepted. He is the ultimate clever careerist. Yet his total lack of integrity and commitment to his own and the court’s reputation above all else will end up making him hated by everyone.

      The liberals and the media will never hold him in anything but contempt. He didn’t buy himself anything but fake praise from them with the obamacare decision. The moment he deviated from the party line they went right back to hating him. And the Right will forever consider him a traitor no matter what he does in his remaining time on the court. At this point Roberts doesn’t have a friend in the world. I bet his own clerks don’t respect him.

      1. I hope his dog pees in his shoes.

        1. I hope his wife pees in his shoes just before he heads over to the court for an important case.

      2. He is the character from The Fountainhead.

        He graduated with honors as an archetect, even though he wanted to be an artist. He manipulated himself to the top of his field, but he was never really any good at it. And by then, it was too late to become an artist.

        BTW, that last part is (one place, there are others) where I disagree with Rand. I dont think its ever too late.

        1. Christ, do you people read any other books?

          1. I used to read books, for fun even, and then I tried reading The Fountainhead. Now I just stick to blog posts and videogames.

            1. Actually, The Fountainhead is IMO her least bad book. Still not a good book though.

          2. The Bible is always good, Tony – especially the Old Testament Books of Laws, Leviticus, and Deuteronomy. I’m certain you’d greatly enjoy those. 🙂

            1. The Bible is always good


    4. Kelo didn’t damage the reputation of the Court with average Americans as badly as ObamaCare.

      Sorry, Kelo made me lose all hope in any actual justice or constitutionality coming out of the SC ever.

  7. The progs are still calling it a typo.

    Here’s a other typo:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    1. Clearly what they meant to say was:

      “The Federal Government can regulate anything, everything and nothing.”

  8. There HAS to be some fucking sneaky shit going on, these decisions relating to Ocare are simply shocking.

  9. Oh please.

    You were all about the courts when they ruled in your favor, and now you show disdain because they elected to use en banc review. The fact that it is rarely used is meaningless. It has been used, its been used more frequently in the recent past, and its used when cases are important, and when there has been a split in the lower courts decisions. Both requirements were met here. What, Peter, you don’t think anything to do with the ACA is important enough? You’ve only told that to us for a couple of years now.

    More cases are coming? Big deal. You keep losing in them, even at the Supreme Court.

    1. The ACA trods all over natural rights.

      If you got your pony without forcing the rest of us to pay for it, then you could stand and make judgment about our opinion of the procedures of the courts.

      As it stands, you’re holding a gun to everyone’s head, and then bitching that they’re exercising the paltry procedural “rights” that you’ve left them with.

      1. JA is a prog. Progs are violent. That is all.

      2. I didn’t bitch at anything occurring in the courts regarding the ACA…that would be Peter and his disdain that en banc has only been infrequently used. Its he, and you, who believe every legal proceeding should be used…but only by your side.

        There are lots of things I am forced to pay for…a bloated military budget, wars, a local library, schools…and even more. But I guess only you and Peter get to complain about things we are forced to pay for.

        1. Turd.Burglar.

        2. You don’t actually want to stop paying for those things, though.

          You’re bitching that your pony isn’t free, but you’re not willing to give the pony up.

  10. my buddy’s mother makes $68 every hour on the computer . She has been without a job for 7 months but last month her payment was $20075 just working on the computer for a few hours. pop over here…

    ============ http://www.netjob70.com

  11. Basically, the court decided to start over, but this time with the whole court involved rather than just the original three-judge panel.

    Yup. Just like with the Bush/Gore presidential election: If the Dems don’t get the results they want the first time, they just keep doing do-overs until they do.

    1. So, you’re saying their brazen lawlessness and partisanship will annoy SCOTUS conservatives enough to intervene, Team Red will win in a 5-4 decision, and progs will whine that they were robbed for the next decade?

      1. Nooo. I’m saying that progs will keep asking for do-overs if they don’t get the result they want. I don’t pretend to know what SCOTUS will do, but I have little faith it will overturn Obamacare.

        1. Maybe, I was just pointing out how things went with Bush/Gore.

  12. There is no law. There is only political power.

  13. Did the DC Circuit’s “high standard” go away at some point? Granting the hearing suggests that the majority has a problem with the ruling, as well they might, since it was poorly reasoned and potentially massively disruptive.

    1. You mean, it was poorly reasoned because it might massively disrupt the prog agenda of total control, or at least Team Blue’s election chances once the fallout from their bullshit corporatist law lands fully on the poor.

      1. ” disrupt the prog agenda ”

        Hail Sithis !!!!!

    2. “since it was poorly reasoned”

      Prove it – with unequivocal and absolute definitiveness.

      1. No no. Just show the slightest bit of evidence that it was poorly reasoned.

    3. “majority has a problem with the ruling, … potentially massively disruptive” – in other words, doing something to upset whatever is the status quo – whether it’s good or bad – is something that should be avoided.

      The ACA itself was “massively disruptive – did you complain about that point then?

  14. And yet, Rush called it on the first day, weeks ago.

    I had never heard of en banc before that.

  15. Is there anybody left in the country that still thinks the courts aren’t a total joke?

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