Opponents of the Affordable Care Act apparently will say anything to advance what one judge has called their "not-so-veiled attempt to gut" the statute. We've seen that in the substance of their legal challenges to the ACA, the latest of which include the claim that the statute, which was enacted to make health insurance affordable for all Americans, actually prohibits the very tax credits that make it affordable for so many people. And now we're seeing that in their efforts to rush these challenges to the Supreme Court because that's where they apparently think they have their best shot at a victory.
Last month, two federal appeals courts issued conflicting decisions on the availability of tax credits to those who have purchased health insurance on federally-facilitated, rather than state-established, health care exchanges under the ACA. In King v. Burwell, the Fourth Circuit upheld the IRS rule confirming that tax credits are available to those buying insurance on federal exchanges, while a three-judge panel of the D.C. Circuit came out the other way in a divided decision in Halbig v. Burwell. The ACA opponents in King quickly asked the Supreme Court to hear that case, and the Act's opponents in Halbig (represented by the same attorneys as the challengers in King) are now opposing the government's request that the full D.C. Circuit rehear Halbig in what's called an "en banc rehearing."
In a brief that's as thin on credible legal analysis as their underlying lawsuit, the ACA opponents in Halbig have said the full D.C. Circuit shouldn't rehear the case. Instead, they argue that the Supreme Court "must" decide this set of ACA lawsuits because only the Supreme Court can "giv[e] a definitive answer" to the question whether the ACA permits tax credits for individuals who purchase insurance on federally-facilitated exchanges. There's just one problem. As any lawyer knows, the vast majority of lawsuits in this country are "definitive[ly]" decided without Supreme Court review. And there's good reason to think that this set of challenges to the Affordable Care Act should be among them.
While it's true that the Supreme Court often hears cases to resolve a division among the lower courts, the lower courts won't be divided if the D.C. Circuit decides to rehear Halbig en banc. That's because orders granting en banc review vacate panel decisions; such an order here would eliminate the split with the Fourth Circuit in King. At that point, the Supreme Court will likely either deny review in King or wait to act until the D.C. Circuit issues its en banc decision in Halbig. At least that's what it would do if this were an ordinary case. After all, not only would there be no division among the lower courts, but there might not ever be one, because the full D.C. Circuit might well agree with the Fourth Circuit.
And there's a good reason the D.C. Circuit should rehear Halbig en banc, although you wouldn't know it from reading the brief the law's challengers filed yesterday. Funnily enough, these ostensible textualists declined to cite -- even once -- the text of the rule that actually governs the issue: Federal Appellate Rule 35, which says that rehearing en banc is appropriate when a "proceeding involves a question of exceptional importance." The Rule further explains that a proceeding is "of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue." Sure sounds like the situation here.
In their brief, the law's challengers try to distract from the governing Rule by pointing to a number of cases in which the D.C. Circuit (and other courts) declined to grant en banc review. But almost all of the cases they cite are inapplicable, either because they predate the 1998 amendment to the Federal Appellate Rules that explicitly identifies a circuit split as a reason for rehearing en banc, or because they did not involve a situation--like this one--in which the court considering en banc review could have resolved such a split if the full court came out the other way, or both. The Notes of the Advisory Committee on the Rules--which the law's challengers also decline to cite--make clear that en banc review is particularly appropriate when it can resolve a circuit split: "If a panel decision simply joins one side of an already existing conflict, a rehearing en banc may not be as important because it cannot avoid the conflict." Here, of course, the full D.C. Circuit can resolve the conflict if it agrees with the Fourth Circuit.
The law's opponents also argue that the D.C. Circuit shouldn't bother with en banc review because the Supreme Court will still have to take the case. According to them, Supreme Court review is necessary regardless of what the D.C. Circuit may do because it's "quite probable that the [IRS] Rule will be invalidated at some point by another court." Not as probable as the ACA challengers would like to think. While there are two other challenges against the IRS rule pending, there's no reason to think the ACA's opponents will prevail in those challenges. Six of the eight judges who have already heard these challenges have recognized what the text, purpose, and history of the ACA all make clear: it makes tax credits and subsidies available to all qualifying Americans.
The ACA's opponents may be willing to say anything in their efforts at another chance in front of the Supreme Court, but what they're saying about en banc review doesn't make much more sense than what they've been saying about the meaning of the ACA. Two judges on the D.C. Circuit may have been willing to buy their arguments, but if the full D.C. Circuit decides to rehear Halbig en banc (as it should), it's very unlikely the full D.C. Circuit will.