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A man fills out an information card during an Affordable Care Act outreach event hosted by Planned Parenthood for the Latino community in Los Angeles, California September 28, 2013. REUTERS/Jonathan Alcorn
Challengers to Obamacare's subsidies who were shot down by a three-judge panel of the U.S. Fourth Circuit Court of Appeals appealed their case to the U.S. Supreme Court on Thursday, rather than asking for a review of the full panel of judges on the Fourth.
The lawyers noted that after last week's ruling on the case, which came the same day that another federal appeals court ruled that the subsidies were not legal, millions of people "have no idea if they may rely on the IRS’s promise to subsidize their health coverage."

"Only this Court can definitively resolve the matter," they wrote. "It is imperative that the Court do so as soon as possible."

Their brief includes the off-the-cuff comments by one of the law's architects, MIT professor Jonathan Gruber, who in a 2012 talk seemed to bolster the argument that only people in states that set up their own exchanges could receive federal subsidies. Gruber has since made clear that those comments were a mistake, and that his understanding and intention all along had been that everyone purchasing through an exchange would get the subsidy.

The government's case will be bolstered by what's pretty clear proof of the intent of the law: "The CBO never entertained that possibility for the same reason no one else did: It was not how the law was supposed to work."

"It definitely didn't come up. This possibility never crossed anybody's mind," David Auerbach, who was a principal analyst for the CBO's scoring of the ACA, told TPM on Thursday. "If we started to score it that way, they would have known that, and they would have said, 'Oh, oh my gosh, no, no no,' and they probably would have clarified the language. It just wasn't on anybody's radar at all."
Whether the court will do so is as yet unclear, and could depend in part on the other federal court deciding on the issue, the D.C. Circuit Court in the Halbig case. A three-judge panel on that court ruled with plaintiffs, and the White House has said that it will appeal to the full panel for a ruling, which will very likely overturn that decision. If these two appeals courts end up in agreement that the suits should be tossed, then the Supreme Court might be less likely to want to take it on. But predicting what this SCOTUS does is a losing proposition.

Originally posted to Joan McCarter on Fri Aug 01, 2014 at 02:36 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Tip Jar (24+ / 0-)

    "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

    by Joan McCarter on Fri Aug 01, 2014 at 02:36:59 PM PDT

  •  Question remains whether DOJ will ask for (2+ / 0-)
    Recommended by:
    TofG, Ahianne

    en bank review by the full DC Circuit in the other case. If so that decision will be rendered before the SC ever gets to this one. And if reversed would mean no split among the circuits.

    Further, affiant sayeth not. 53959

    by Gary Norton on Fri Aug 01, 2014 at 03:02:41 PM PDT

    •  But if it splits solely along "party" lines, (2+ / 0-)
      Recommended by:
      Powered Grace, VClib

      that will increase the chances of the SCOTUS taking it, I think.  Remember, there doesn't have to be a split in the circuits for the SCOTUS to take it.  The fact that a number of judges have split, and that even the 4th Circuit found ambiguity - and found that the plain language of the subsidy provision seems to support the challengers - makes the issue far from clear.  And it is an issue of significant importance to the entire country.

      The fact that the D.C. Circuit now has more Democratic judges primarily because of the recent elimination of the filibuster is pretty well known, even to the Justices.  If this ends up being a party-line split, with all judges voting along party lines, then I think the SCOTUS takes it, even if the en banc DC Circuit sides with the 4th Circuit.  If that's what happens, it will be pretty clear that the appellate judges are voting along political, rather than legal, principles.  And the fact that even the judges upholding the federal subsidies think the issue is not clear only adds to the importance of the SCOTUS taking it.  

    •  I think they asked for en banc review today n/t (0+ / 0-)
    •  Heard on the news tonite.. (0+ / 0-)

      that the DOJ is asking for an en banc review.

      "Well Clarice, have the lambs stopped screaming?"

      by buffie on Fri Aug 01, 2014 at 05:53:50 PM PDT

      [ Parent ]

  •  A better overview (4+ / 0-)

    Here's a better overview of the situation:

    "The Obama administration went ahead on Friday with its plan to ask the U.S. Court of Appeals for the D.C. Circuit to reconsider, before the full en banc court, the decision that would bar tax subsidies to purchase health insurance on the “exchanges” operated by the federal government in thirty-six states."

  •  Another case of elections matter (1+ / 0-)
    Recommended by:
    Stude Dude

    The 4th circuit used to be quite conservative. There is now a  10-5 split on the court in favor of Dem appointees and two of the judges on the panel for the King case were Obama appointees and Obama had 6 appointees on the full court.

    So it makes sense for the challengers to bypass a full court review.

    The opposite, of course, is true for the government in the DC circuit, where the full court now leans towards Democratic appointees.

  •  Anything can happen. (2+ / 0-)
    Recommended by:
    jazzmaniac, White Buffalo

    The law has been reduced to the level of political gamesmanship in this country.

  •  I will predict this: (2+ / 0-)
    Recommended by:
    buffie, Stude Dude

    if the SC shoots down the ACA, there will be hell to pay. You want a popular uprising? Then shooting down the ACA will make it happen.

    "Whenever the people are well-informed, they can be trusted with their own government" T. Jefferson

    by azureblue on Fri Aug 01, 2014 at 05:38:57 PM PDT

  •  Look at it this way... (1+ / 0-)
    Recommended by:
    Stude Dude

    Here in the Old Dominion since (praise the saints!) we have Democrats in the Executive Offices, the answer is going to be, "What Federal Exchange? There is no Federal Exchange. The Feds simply maintain and administer the Virginia Exchange."

    Makes sense, no? If you tell the HIM you're in Virginia, you only see policies appropriate to Virginia, or wherever. There is no "Federal Exchange".

    And I still can't see John Roberts kicking over this hornet's nest.

  •  I don't get these people. Just when I thought I'd (1+ / 0-)
    Recommended by:

    figured out that they want people to pay less taxes, they turn around and want people with staunchly Republican governors to pay MORE taxes.

    "Portion of the adolescent prisoners in solitary on Rikers Island who have been diagnosed with a mental illness: 7/10." Tell someone.

    by RJDixon74135 on Fri Aug 01, 2014 at 06:08:46 PM PDT

    •  They want one thing, and one thing only: (5+ / 0-)

      To kick Obama in the nuts.

      Any talk of taxes, the deficit, freedom, the Constitution, states' rights, etc., etc., is just so much noise.  It's personal with them, their vendetta outweighs their principles and their so-called values.  They're so obsessed that it's clear their constituents are out of luck.

      "It ain't right, Atticus," said Jem. "No, son, it ain't right." --Harper Lee, To Kill a Mockingbird

      by SottoVoce on Fri Aug 01, 2014 at 06:23:30 PM PDT

      [ Parent ]

  •  Once again, the attempt is to create a... (2+ / 0-)
    Recommended by:
    Kentucky DeanDemocrat, jj32

    non-functioning government. Regulatory interpretation of law is a normal and necessary part of the lawmaking process. You can't make law if you can't interpret and implement it.

    "The Democratic Party is not our friend: it is the only party we can negotiate with."

    by 2020adam on Fri Aug 01, 2014 at 06:19:59 PM PDT

  •  Legislative history (2+ / 0-)
    Recommended by:
    VClib, johnny wurster

    Gruber wants to now say that he spoke carelessly, but it seems he said pretty much the same thing on a separate occasion. Of somewhat more moment is the legislative history, which apparently shows language that at one time specified subsidies to people on a federal exchange and then dropped that language. Greg Sargent provides an overview of the legislative history, which he believes shows that the final language is an accident that occurred while drafts were merged. As I understand it, courts have generally taken similar instances to mean that the legislators must have deliberately changed the language and that the final result governs.

    Here are a few Volokh Conspiracy blog posts, well worth reading for both the primary posts and the legal discussions in the comments. [These are legal academics writing for lawyers and FWIW, the law professors who contribute to Volokh are heavily libertarian, but commenters are pretty wide-ranging].

  •  The eminence of the Supreme Court. (0+ / 0-)

    When I see a formal portrait of the current Supreme Court,  all berobed in sable with chiaroscuro lighting,  I can't help but think of it as a Rembrandt van Rijn painting of Fox and Friends.  

  •  In their rush (0+ / 0-)

    to destroy the ACA, Republicans choose a course that will hurt them more than it will hurt their opponents.  What they are talking about are close to 5 million people, most of whom vote.  Can you image how you would feel if you were a person in one of those States and someone you voted for supported the law suit that tried or took away your chance of actually being able to buy health coverage.  Would you vote for that person again or choose the other side?  You have to remember that the States that are affected by this law suit are primarily Red States.  So the GOP is biting the very hands that feed them. Not too smart if you ask me.

  •  Guess What? We are talking about the Supreme Court (0+ / 0-)

    That means there is as much chance they will decide 5-4 that Obama Care is null and void because - well because they CAN. THe have shown they can say or do anything they want. THey can speak at anti - ACA Rallies, have direct family connections to political extremist organizations and they can come up with solid reasoning (ask them - it is solid because they SAY it is) to decide that a private developer can get the town to take over private homes by eminent domain, that 500 employees can't do Class action because they don't all work the same shifts at the same store at the same time and that if any law enforcement person or prison employee thinks they might possible be in danger they can strip search ANYONE whether they have been arrested or charges or anything. Yeah - Watch this blow up big
    time. Those 5 crazies wold love to trash the last thing Obama can lean on as a success. Face it - Obama has not done anythng he can lean on that is not swiss cheese with all the concessions that were made. ACA is the last BIG thing and this court could completely trash it.

  •  What is the meaning of "state"? (0+ / 0-)

    The subsidies apply to insurance plans purchased “through an exchange established by the state.”

    The nit-picking textualists should consider what Congress meant by "the state". Such terminology can refer to the federal government as well. A more reasonable inference drawn from Section 1401 would be that only plans purchased on exchanges set up by non-government entities would be ineligible for subsidies.

    The only way to expressly indicate that plans bought on exchanges established by the federal government would not be eligible for subsidies would be to use language such as "through exchanges established by the several states".

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