I’ve written twice before this year (HERE and HERE) to comment on the progress through the federal court system of two ObamaCare cases. The two are among the many filed that are predicated on the contention that ObamaCare subsidies cannot be legally paid when the health care coverage is purchased via a federal exchange (i.e., through the Healthcare.gov online portal) by a resident of a state that did not establish a state exchange. North Carolina, of course, is one such state.
The first post noted the ruling in July of a 3-judge panel at the D.C. Circuit Court of Appeals in a case named Halbig versus Burwell. The panel ruled, via a 2/1 majority, that such subsidies were illegal under the Patient Protection & Affordable Care Act (PPACA, or ObamaCare).
The second post was about a similar ruling, this one from a District Court in eastern Oklahoma in a case known as Oklahoma versus Burwell.
In the D.C. Circuit case, Halbig versus Burwell, the defendants (the Obama administration’s DHHS head Sylvia Burwell or her successor) had asked that the full court review the case, and their request had been granted. Since the Obama administration has succeeded in recent years, with Senator Harry Reid’s help, in appointing several new liberal justices to the D.C. Circuit Court, this move was expected to eventually result in a victory for ObamaCare by way of an “en banc” reversal of the 3-judge panel’s ruling.
Now comes word in an announcement Friday that the Supreme Court has agreed to review King versus Burwell, another such case arising out of Virginia. In this case, a 3-judge panel of the Fourth Circuit Court of Appeals, sitting in Richmond, reached the conclusion that the residents of all fifty states were eligible for the federal subsidies, regardless of whether their state had created an exchange.
Since the lower federal courts are now split, the Supreme Court must resolve the basic issue. We do not know which justices voted in favor of taking on the case, but it takes a minimum of four Supreme Court justices to grant certiorari, and it is something of a truism among court watchers that SCOTUS does not usually take on a case for the purpose of affirming a lower court ruling. In addition, Justice Kennedy, the justice who is usually characterized as the Court’s current “swing vote”, was one of the four dissenters in NFIB versus Sebelius, the 2012 case in which Chief Justice John Roberts presided over a 5/4 majority to uphold the ObamaCare individual mandate.
There is, therefore, some basis for taking the optimistic view that there is substantial sentiment on the court for a view of the subsidies issue that is not in accord with that of the Obama administration’s Justice Department.