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