As I have written about in columns and testimony, the most significant challenge to Obamacare was never Hobby Lobby but Halbig vs. Burwell that has been pending in the D.C. Circuit. I described Halbig in my testimony as a live torpedo in the water for Obamacare. Well, that torpedo hit when the D.C. Circuit found that the Obama Administration effectively rewrote the law on a critical provision dealing with tax credits and state exchanges. However, soon after the D.C. Circuit delivered that major loss to the Administration in rejecting its statutory interpretation under the ACA in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit has delivered an equally important victory on the very same issue in King v. Burwell. This tale of two circuits only increases the likelihood of a Supreme Court review and perhaps the case for expedited appeals.
Fourth Circuit Judge Roger Gregory (who was nominated by George W. Bush but given an recess appointment by Bill Clinton) wrote for the panel. Gregory adopts the deferential standard advocated by Judge Edwards in his Halbig dissent. He finds that the law is ambiguous and thus “Applying deference to the IRS’s determination . . . we uphold the rule as a permissible exercise of the agency’s discretion.” It is a victory for Chevron, which some of us believe gives far too much deference to agencies in their actions and interpretations.
The decision to accept Kingis notable because the Halbig case in on en banc review — a review that could erase the split in the circuits. The acceptance of King shows a clear intention to address the issue by at least four justices regardless of any split. There is no requirement of a split for such a review. At issue is a foundational component of the ACA that could pose an existential threat to the program if the Fourth Circuit is reversed. Presumably, the Halbig case could be joined with King at a later date.
The case could again put Chief Justice Roberts in the position of saving or dooming the ACA with a court that has been deeply divided over the Act.
While I tended to agree with the Halbig analysis, I wrote a column objecting to attacks on the judges of both circuits as political hacks. There are good faith rationales in both opinions and long-standing positions reflected by the judges who voted on the respective panels. While I expect that people will again treat the matter as just another ideological contest of partisans on the Court, it is more than that. Much more.
Here is the opinion: King decision