The DC Circuit court has decided to withdraw a previous decision which posed a threat to the structure of Obamacare and rehear the case.
In July a conservative-leaning 3-judge panel ruled 2-1 that the plain language of the ACA meant subsidies should not be available to people buying insurance in the federal marketplace. The DOJ appealed the ruling and today the court decided it would let the full, more liberal, court hear the case.
The decision to rehear (and almost certainly to reach a decision favorable to Obamacare) could be a factor in whether the issue eventually reaches
the Supreme Court. In July two different Circuit Courts ruled
differently on the same day. That kind of stark division of opinion on a major
issue is exactly the sort of thing the Supreme Court is intended to
resolve. However, if the DC Circuit reverses itself (as it surely will)
then no divergence of opinion exists for SCOTUS to resolve.
Progressive policy wonks labeled the 3-judge panel’s Halbig decision “judicial activism” as soon as it was released in July. They also simultaneously assured readers the full court would likely overturn the decision because it was overwhelmingly liberal. The presumption of ideological fealty by liberal judges was not labeled judicial activism by anyone at Vox, Think Progress or the New Republic.
The liberal make-up of the DC Circuit did not happen by accident. Last November Sen. Harry Reid changed the rules of the Senate to allow judges to be confirmed by a simple majority vote. One result of his decision to “go nuclear” with the filibuster was the confirmation of 3 more liberal judges on the DC Circuit.
It’s still possible the Supreme Court could agree to take the Halbig case even if the DC Circuit reverses itself. The King v. Burwell case has already been appealed to the Court. It takes four Justices to accept a case. That probably means Chief Justice Roberts would need to decide to hear the case along with Justices Alito, Scalia and Thomas. But given the Chief Justice’s previous reversal on Obamacare’s individual mandate, conservatives may not be able to rely on the same level of ideological fealty at the Supreme Court as progressives apparently can at the DC Circuit.