Supreme Court Remains Silent on Obamacare Tax Subsidy Challenge


On July 22 of this year, two federal appellate courts issued clashing decisions within hours of each other on the meaning of a key provision of the Patient Protection and Affordable Care Act. In Halbig v. Burwell, the U.S. Court of Appeals for the District of Columbia Circuit held that the plain text of Obamacare forbids the granting of tax credits to individuals who purchased health insurance on health care exchanges operated by the federal government. In King v. Burwell, the U.S. Court of Appeals for the 4th Circuit reached the opposite conclusion, holding that while the relevant Obamacare provision might appear to cut against the federal government, the I.R.S. rule allowing tax credits via federal exchanges is nonetheless entitled to the benefit of the doubt from the federal courts. As that court put it, "we must defer to the IRS rule."

Both sides of the dispute promptly filed appeals. The Obama administration, which lost Halbig, asked the D.C. Circuit to rehear the case with a full panel of judges. The D.C. Circuit agreed to do so. The losing side in King, meanwhile, petitioned the Supreme Court to take up its case and overturn the 4th Circuit. On Friday (Halloween) the Supreme Court met in private conference to decide whether or not to do so. Today the Court issued its orders from that conference. Yet those orders made no mention of King v. Burwell. It was total silence. A short while later, the Court's docket announced that King had been relisted for another round of private discussion among the justices at this Friday's conference.

What does this mean? Why didn't the Court simply agree to hear or reject the case? At SCOTUSblog, Lyle Denniston sketches four possible explanations:

First, it could mean that one or more Justices seemed to simply want some more time to ponder the case, especially since there is at present no split among federal appeals courts on the subsidy question.

Second, it could mean that the case has not drawn the support of four Justices in favor of reviewing the dispute, but that the case was put over to see if more votes might be forthcoming.

Third, it could mean that the Justices just will not take any action on the controversy until a split does develop among federal appeals courts.   The rescheduling for another look this week would not seem to support that prospect.

And, fourth, it could mean that the Court is inclined to grant review, but is simply following in this instance its apparent new policy of not granting any new cases the first time it examines them at a Conference.  This is a policy that emerged last Term, to try to head off the chance that a case seemingly worthy of review turns out not to be on closer examination.

At the Volokh Conspiracy, Case Western University law professor Jonathan Adler, whose legal arguments have played a central role in these two challenges to the health care law, lays out the reasons why the Supreme Court may soon agree to hear King v. Burwell:

The justices often like to wait and let questions "percolate."  So whether the Court agrees to hear King will likely depend on whether the justices (or, more precisely, four of the justices) believe that a) this is a question that will (or should) eventually fall on their plate, and b) this is a question that should be resolved sooner rather than later. …

Does King satisfy both criteria?  It might.  In King there is a serious argument that it would be better to resolve the underlying question of statutory interpretation sooner rather than later.  The resolution of this litigation will alter the calculus for many political and private actors considering how to respond to the PPACA, and the statute contains various deadlines and timeframes that may become harder to navigate the longer this litigation drags on.  Among other things, states may wish to reconsider whether to create their own exchanges and seek additional support grant. Some states that created their own exchanges are planning to shift to a federal exchange; Oregon's transition is already underway.  A victory for the plaintiffs in King could force them to reconsider. It might also prompt HHS to develop rules to facilitate the state waiver process that begins in 2017.  The more time they have to do this, the easier it will be. Further, the longer the IRS rule remains in place, the more disruptive it will be should the Supreme Court ultimately decide that rule is illegal, a point made by the petitioners in their briefing and highlighted by the WSJ. Of note, it appears some insurers are making contingency plans to prepare for the possibility that the King or Halbig plaintiffs prevail.

In other words, stay tuned next Monday for developments from this Friday's SCOTUS conference.

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  1. One way or another, the clear text of the law will be ignored. SCOTUS is probably hoping someone else takes care of that for them.

    1. This. They're hoping this will just go away like the same-sex marriage issue.

    2. One way or another, they're gonna getcha getcha getcha getcha


  2. "we must defer to the IRS rule."

    Fuck. You.

    1. Blame the Supreme Court, not the 4th circuit

    2. Deference is the exact opposite of what should be done. There should be a presumption of guilt for government actions: "Prove that this regulation is Constitutional."

      1. I've always thought that in any liberty loving society every government measure would have to meet at the least intermediate scrutiny review, and perhaps even strict scrutiny.

        1. Yes, the whole "rational relations" test was one of the first shocks in law school--"Wait, what did you say, professor?"

          1. Thurgood Marshall, remarking on numerous occasions: "The Constitution does not prohibit legislatures from enacting stupid laws."

        2. I've always thought that in any liberty loving society

          We don't live in a liberty loving society, unfortunately.

  3. The justices often like to wait and let questions "percolate fester."


  4. This will be interesting. While the text is pretty clearly on the side of the plaintiffs, that really doesn't mean all that much if the Supremes want to rule a certain way.

    The federal court system all the way to the top, in general, is deferential to the executive (I mean, they ARE chosen by the executive). On top of that, I don't see Roberts or Kennedy -- not to mention the Court's liberal wing -- doing away with a subsidy that millions of people have taken advantage of (regardless of whether they should have received that subsidy to begin with).

    My prediction: we'll get a mushy nonsensical 5-4 opinion saying the legislative language at issue has a meaning that isn't exactly what the IRS says it is but will still allow the IRS to do as it has been doing.

  5. Look, this law has what is known as a 'penaltax'. And you see, the penaltax is supreme, the penaltax rules all. So by virtue of penaltax, everything else about the law is above question, because penaltax. Take that, Rethuglicans!

  6. I suspect they're thinking is more along the lines of "Last time we took up a case on that godforsaken clusterfuck of a statute, we did once-in-a-generation damage to the Supreme Court as an institution. This is either a chance to undo some of that damage, or compound it."

    That's what they are arguing about, in their heads at least if not out loud.

    1. +12 Interesting comment.

    2. Ah, they might, Rabbit, they might...

  7. It means either they didn't get around to talking about it last week or they wanted to wait and see which party ends up controlling Congress.


  8. Against my better judgement, I've decided to watch Fox election coverage tomorrow after work. Maybe later, also against my best judgement, I'll tune into MSNBC for a heapin helpin of delicious proglodyte tears.

    Or maybe that democrat girl who never washes her hair, can't remember her name, is right and the dems hold the senate, which will be the sign that Obama is going to rise from the dead and bring about the utopia.

  9. "I'll tune into MSNBC for a heapin helpin of delicious proglodyte tears."

    Tears smears, I'm waiting for the knives to come out. As the Progs start viciously stabbing at the Democrats for not being sufficiently Proggie enough. Because clearly if they had been, the people would have marched into the streets and demanded the Democrats be installed to everlasting power and the Republican's perp walked into the re-education camps.

    1. Yeah, it will be like 'You traitors! What are you trying to do?, be Republicans! People don't care about that economy shit, they only care about global warming and transvestites being able to use the girls restroom!

  10. It's time for another exciting round of Spot the Not!. Two of the following are actual quotes from Supreme Court justices:

    1.Frankly I had thought that at the time, there was concern about population growth and particularly growth in populations that we don't want to have too many of.

    2. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

    3. The founders did not intend the Constitution to be a suicide pact. Moreover, they could not have anticipated, and surely would not have wanted ordinary citizens to possess assault weapons. It is the duty of the court to uphold reasonable, common-sense gun regulations.

    1. 3

      1. For shame, Pro-L! Aren't you a law-talking guy?

        #3 is the fake.

    2. Yeah, 3, that was easy.

  11. What are you guys doing, playing some silly game? Do you realize that tomorrow, Turtle Head could be the Senate Majority leader!? Fucking Turtle Head!!!!! The fucking apocalypse!!! fucking Koch fucking war on wiminz dying in the fucki!II#** streets, racists!EIO@*)@ m!*#@(*&%$ gdit, mfer, $%@!! dirty rat fucking tagging bea fucker #@#@**!!!!

  12. Guardian Article on TX Voter ID Law's Effect

    "Eric Kennie is a Texan. He is as Texan as the yucca plants growing outside his house. So Texan that he has never, in his 45 years, travelled outside the state. In fact, he has never even left his native city of Austin. "No sir, not one day. I was born and raised here, only place I know is Austin."

    You might think that more than qualifies Kennie as a citizen of the Lone Star state, entitling him to its most basic rights such as the ability to vote. Not so, according to the state of Texas and its Republican political leadership. On 4 November, when America goes to the polls in the midterm elections, for the first time in his adult life Eric Kennie will not be allowed to participate."


    1. 45 years old and no form of ID?

      Wait a minute- in the picture he has an expired ID. Was it just too hard to renew it?

      1. That's explained in the article.

    2. In fact, he has never even left his native city of Austin.

      I always find it hard to believe when people say this sort of thing. He never once went, I don't know, hiking? To visit a relative or friend that moved away?

      1. I always find it hard to believe when people say this sort of thing. He never once went, I don't know, hiking? To visit a relative or friend that moved away?

        Well, you've obviously never lived in the midwest. I knew plenty of people there who had never left the county in which they were born, let alone the state, and were terrified of doing so.

      2. OK, after reading up a bit on him, it sounds more believable.

    3. So, you're saying that this guy who has lived in TX all his life, does not have a birth certificate that will allow him to get a photo ID, and it's impossible for him to get one?

      Sorry, I'm not buying it.

      Requiring an ID to vote is not racist. And it is in fact necessary now that states like MD are clearly violating voting laws by not only allowing illegal aliens to vote, but actively encouraging them to do so.

      Everyone can get a photo ID.

      Also, I want to see a list of countries that allow you to vote without proving citizenship.

      1. Of course everyone *could* get an approved ID, the point is that, like every other government regulation, the less resources and bureaucratic savvy you have the more challenging it is.

        One way out of this would be to make sure the necessary documents, like birth certificates, are free to get or access.

        1. I'd like to think that in an internet age this should be 'do-able' (why would it be necessary to have to got to two different government agency locations to have your BC accessed and shown?).

          1. Do you really trust the government to be able to digitize the legal records of everyone in the country and make them accessible in one location? i don't, for myriad reasons.

        2. Of course everyone *could* get an approved ID

          Well, then they need to, because people coming here and voting in our elections without being a citizen is unacceptable.

          You're not going to find anyone more pro-immigration than what I am. I don't care who comes here. You want to come here and work, take care of yourself? Come on in, bring your family if you can care for them.

          You want to come here and vote yourself free shit courtesy of the tax payer? Fuck no, no fucking way, not now or ever. We already have enough dead beats here living off the tax payer, we hardly need to import more.

          That being said, all of the immigrants I know here, both legal and illegal have a better work ethic that most Americans. But the Democrats encouraging people to come here illegally, take tax payer benefits, and vote in elections is way beyond unethical. They should be prosecuted for it and severely.

          1. I don't necessarily disagree, at least in theory, I just would like to not see fellows like this one denied the vote.

            1. I don't want to see any citizen denied their vote. But the problem is the incredibly incompetent government he is dealing with. Those people are fucking morons, every last one of them. Someone should have already helped this guy get his ID, but because they are government employees, they don't give a shit. They can't be fired for incompetence, in fact that's a plus for them, it might get them promoted. Still, the voter ID law in itself is not bad. A totally out of control government is the problem, not voter ID.

      2. If you read the link, it sounds like he tried pretty much all the options he has, including his birth cerfiticate. Apparently the last name on the certificate is his mother's maiden name, which he doesn't use, so they denied that.

        That sounds totally believable to me. My mother's birth certificate had a different middle name than the one she used on all her legal documents since her driver's license. When she went to get a passport it caused a lot of headaches and was not resolved quickly.

        1. Yet, illegals have no problem getting an ID with no documentation.

          When I took my wife to the MVA here in the PRM, it's unbelievable at the amount of documentation we had to show for her to take her driver test. I had to leave and come back 3 times, and then they tried to say that our marriage certificate, an official document from the county in which we were married with the seal and everything was not the copy that they needed. They only accepted it after I got very angry with them.

          Yet, if you are here illegally? No documentation required! Go to the front of the line!

          FUCK THIS SHIT! People are going to start getting very angry once they realize how fucked up this shit is.

          1. I remember reading an article about an American engineer who had to submit all kinds of forms before he was allowed to work in Mexico. On one of the forms, he had to write an essay explaining why no one in Mexico was qualified to do what he did.

            And of course, Mexico has high tariffs on China, because DEY TUK R JERBZ!

      3. Requiring an ID to vote is not racist

        You know what is racist, though? Advancing a narrative that minorities cannot handle one of the simplest facets of modern life in this country: the simple task of getting an ID.

        1. It's a good thing then no one is advancing that narrative, rather than one that says only that people with less resources and savvy navigating government bureaucracy will have it harder and that a greater percent of blacks are in that group

          1. It's a good thing then no one is advancing that narrative

            You might not be, but "no one" is beyond your ability to claim. And really, you're arguing semantics.

    4. I feel a case of the vapours comin on.


  13. Each trip to the DPS office involved taking three buses, a journey that can stretch to a couple of hours. Then he had to stand in line, waiting for up to a further three hours to be seen, before finally making another two-hour schlep home.

    In one of his trips to the DPS last year they told him he needed to get hold of a copy of his birth certificate as the only remaining way he could meet the requirements and get his EIC. That meant going on yet another three-bus trek to the official records office in a different part of town.

    The cost of acquiring a birth certificate in Texas is $23, which may not sound much but it is to Kennie. He is poor, like many of the up to 600,000 Texans caught in the current voter ID trap.

    I have a hard time feeling sorry for someone who can't get their act together long enough to get a photo ID.

    1. Did you read what he tried?

      1. Yes, I did, and I still say he is a moron for not getting his act together long enough to get a driver's license- something most people do before they are even allowed to vote!

        He has no bank account, no car, no savings, and his biggest problem is he doesn't have ID?


    2. I'm not trying to troll or be snarky with this comment, but even people who don't elicit sympathy are still supposed to be able to vote.

      1. True, being poor or homeless does not take away your citizenship.

        Still, this guy more or less chose to live off the grid.

      2. Sympathy has nothing to do with it.

        There is nothing wrong with being asked to provide reasonable proof that you are who you say you are in order to vote. And there is nothing unreasonable about showing ID being the way to provide that proof.

        The fact that it deters morons and losers from voting is a bonus too though.

        1. Why not just go for Poll tests?

          1. Why not perform an augury with chicken guts?

            Because that doesn't really help establish identity. Showing Identification, does however help to establish identity.

      3. He is able to vote. He's just not willing to do what it takes.

  14. There are several chime bells dangling in the porch of his house, and a cordon of wooden Nutcracker dolls standing guard by the front door. A porcelain model of a laughing pig is staked quizzically on a poll by the drive.

    He has a house, but can't get an ID?

    African Americans and low-income people

    ARGH! Just say black people and poor people, you nimrods!

    No one calls white people European Americans and no one calls rich people high income Americans.

  15. I've got an idea.

    What we need here is some good old fashioned reciprocity.

    Here's how that works.

    We make a deal with Mexico that anyone can just walk across the border and become a citizen. But anyone can also just walk across from the US side and become a citizen of Mexico.

    So libertarians start a massive campaign to get 90% of Mexicans to cross the border and gain US citizenship.

    Right after that, all libertarians go south of the border, take over Mexico and turn it into a libertarian paradise, with a better climate.


    1. I claim the Mayan Riviera.

    2. Ya but what happens to the unemployed donkeys when we introduce a Warty Show?

      1. So you do. All that it's lacking is legalizing da debils weed and becoming the main source for it.

    3. I'm in if I don't have to wear clothes.

      1. Judging by the times I have been in Cancun, I assume that clothing is optional.

        The last time I was there was more than a decade ago though. Now I hear that if you go there, you need to also assume that your head is optional. I'll pass.

        1. Once drugs are legalized the cartels should wayne in power and violence.

          The bigger question is how to square bans on public nudity for people who don't meet certain physical requirements with libertarian philosophy.

          1. Perhaps an ending food subisides and requiring people to bear the cost of their lifestyle choices will make this a mute point, though. Though body hair would still be an issue...

          2. . . . cartels should wayne in power and violence.

            :squints suspiciously: Is that a *Batman* joke?

  16. First, it could mean that one or more Justices seemed to simply want some more time to ponder the case

    And find a way to justify why the plain text of the law is irrelevant.

    1. It takes time to think up plausible-sounding bullshit, you know.

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