The Future for Halbig


By Hadley Heath Manning

An appellate court victory this summer significantly raised the profile of Halbig v. Burwell, one of several cases challenging the authority of the IRS to disburse subsidies through the federal exchange. This case has the potential to impact ObamaCare significantly. 

So where is this case going?  After the law's challengers won in the U.S. Court of Appeals in Washington, D.C., the government (in this instance, the losers) reacted just as expected: they filed for an en banc hearing, or a re-deciding of the case by more judges at the same (appellate) level. They hope to reverse the decision and align the ruling with a similar one at the Fourth Circuit Court of Appeals (King v. Burwell). 

In the Wall Street Journal, attorney Adam White explains why an en banc hearing is not necessary or appropriate in this case:

But if the D.C. Circuit rehears the case en banc, it would be a sharp break from history. The D.C. Circuit rehears virtually none of its cases. Each year the court's three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

The low 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. But that is a dangerous interpretation of the standard, for reasons best stated by Judge Harry Edwards —the very D.C. Circuit judge who dissented from the panel decision in Halbig.

The entire piece is online here

Instead of an en banc hearing, the law's challengers would like to see the Supreme Court take up the issue. If the Court did so, it would hear the case(s) in spring of 2015 and decide in summer 2015. But a lot can happen before then: Open enrollment for ObamaCare plans for 2015 coverage starts on November 15, 2014, just after the 2014 midterm elections. 


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