The last-ditch legal effort by Obamacare foes to destroy the law has been dealt two serious blows in two days. Thursday morning, the Appeals Court for the District of Columbia set aside the ruling
by a three-judge panel on that court in Halbig v. Burwell
, one of the cases that would do away with subsidies for insurance purposes on the federal exchange, and announced that the full court will hear the case.
The D.C. Circuit Court previously ruled against the Affordable Care Act in its initial Halbig decision. It found that Obamacare subsidies were illegal in the 36 states where the federal government was running the health insurance exchange.
The en banc review has potential to be a big win for Obamacare because it opens up the possibility of the DC Circuit Court reversing its decision. The Fourth Circuit already ruled for Obamacare in a separate, Halbig-like case. If the en banc DC Circuit ruling also rules for the government, that would bring the two appellate courts into agreement on the subsidies’ legality.
The full D.C. Circuit features eight judges named by a Democrat and five by a Republican. That's not always indicative of how a court will rule, but it's a good bet it will reverse the initial decision. The Supreme Court is paying attention, which leads us to the second blow to Obamacare opponents. In the other case, King v. Burwell
in the Fourth Circuit, the challengers to the law had asked the Court to not allow any delays and to act promptly to hear their challenge. The Supremes instead granted an extended deadline
for filing briefs requested by the government. The Justice Department had argued that pending D.C. Circuit en band case is "directly relevant" to King
, and the Court apparently agrees.
It would be pretty unusual for the Supreme Court to take on this case should the two circuit courts end up in agreement, both upholding the subsidies. With this Court, nothing is certain, but now there's an even less of a likelihood of the subsidies in Obamacare being revoked.