As was expected, the full panel of judges in the DC District Court of Appeals has decided to re-hear the Halbig v. Burwell case where a panel of three judges voted 2-1 that the tax credits provided by the federal government was not allowed under the Affordable Care Act, saying that the language of the act only allowed exchanges set up the states to do so.
In its ruling, the court vacated the decision made on July 22 by a 2-1 majority that halted the credits. Because of this re-hearing, the US Supreme Court will not take up the case until the new verdict is issued. Even then, if the DC court upholds the federal exchanges subsidies, then the Supreme Court may not take up the case since there would be no controversy to resolve, as Lyle Denniston says:
By granting further review, the D.C. Circuit has raised the chances that the administration will win in that court, as it did previously in the U.S. Court of Appeals for the Fourth Circuit. If there is then no conflict among appeals courts on the question, that could reduce the chances that the Supreme Court would feel a need to step in. However, the issue is pending in other lower courts, so a conflict remains a possibility.
The controversy has already reached the Justices in the case of King v. Burwell, in a petition filed by challengers to the subsidies seeking to overturn their defeat in the Fourth Circuit. The government has not yet replied in that case; this week, it received an extension until October 3 to file its response brief.
It is unclear at this point whether the D.C. Circuit’s grant of en banc review of the subsidies question will have any effect on the Supreme Court’s consideration. The Justices might opt to wait to see if a conflict in lower court exists, but they also could go ahead and grant review of the pending case. That would proceed more slowly than will the new review in the D.C. Circuit, however.
The DC Appeals Court will hear oral arguments on December 17 and its ruling will likely be in the spring.