Those fighting against certain premium subsidies under the Affordable Care Act want an appellate court to step aside now that the U.S. Supreme Court has agreed to take up the issue.
The U.S. Court of Appeals for the District of Columbia Circuit should put a hold on plans to hear oral arguments in Halbig v. Burwell, now scheduled for December, a lawyer for those opposing subsidies argued in a brief filed with the D.C. Circuit Court Monday.
At issue in the case is whether premium subsidies under the Patient Protection and Affordable Care Act should be allowed in states that haven't established their own healthcare exchanges and are instead relying on HealthCare.gov. The IRS has been interpreting the language of the statute to mean that consumers may receive the subsidies in states without their own exchanges, saying the law's clear intention was to offer subsidies to Americans in all states. One part of the actual law, however, says the tax credits are available only to Americans who enrolled “through an exchange established by the state.”
A three-judge panel of the D.C. Circuit Court has ruled that subsidies should not be allowed in states without their own exchanges. But that decision was vacated in September when the D.C. Circuit Court decided to hear the case before the full panel of judges, or en banc.
Oral arguments in the D.C. Circuit Court case are scheduled to begin Dec. 17.
But the Supreme Court's decision Friday to take up a very similar case changes things, a lawyer for those opposed to the subsidies argues.
“Simply put, there is no reason to consume the substantial resources associated with en banc rehearing when the Supreme Court is poised to decide the same issue on virtually the same timeline,” lawyer Michael Carvin argued in the motion filed Monday.
In that similar case, King v. Burwell, the question is also one of whether the subsidies should be allowed in states without their own exchanges. It's expected the U.S. Supreme Court may hear that case as early as March.
At present, 36 states do not have their own exchanges. Some have speculated that if subsidies are ruled illegal in those states, millions of Americans will no longer be able to afford health insurance, possibly leading to the demise of the law itself.
It came as a surprise to many that the Supreme Court took up the issue, as there is no split of opinion on the matter in the circuit courts at the moment.
Experts say anything is possible when it comes to whether the D.C. Circuit Court will agree to hold off on its proceedings given the Supreme Court's new involvement.
Lisa McElroy, an associate professor of law at Drexel University, said she doubts the D.C. Circuit will still hear oral arguments on Dec. 17, saying “it would be meaningless.”
On the other hand, the D.C. Circuit judges might want to put out a ruling before the Supreme Court has its say, said Kermit Roosevelt, a constitutional law expert at the University of Pennsylvania Law School.
“Maybe it will have a persuasive impact on the Supreme Court,” Roosevelt said.
Timothy Jost, a professor at Washington and Lee University School of Law in Virginia, said he hopes the D.C. Circuit moves forward despite the Supreme Court's consideration of the issue.
“It seems to me that the Supreme Court could benefit from the wisdom of the D.C. Circuit which is one of the most highly respected courts in the county,” Jost said.
Some have speculated that the full D.C. Circuit Court would be likely to rule that subsidies in states without their own exchanges are allowable. Of the court's 11 judges, seven were appointed by Democrats and four by Republicans.
A number of other cases regarding the subsidies are also working their way through the courts. A U.S. District Court judge in Oklahoma ruled in September that people in states without their own exchanges are not eligible for subsidies. The Obama administration is appealing that ruling to the 10th U.S. Circuit Court of Appeals. A case is also pending in Indiana.
Follow Lisa Schencker on Twitter: @lschencker
