Will the Supreme Court choose to hear King v Burwell, the case regarding the delivery of subsidies in states without a state-based exchange? Today the court chose to delay its answer for at least a week.
Last Friday the Supreme Court considered an appeal of the King v Burwell decision. The court could have chosen to hear the case or it could have rejected the appeal altogether. Instead the Court chose to re-list the case for more discussion this week. So next Monday we may find out whether four Justices have chosen to accept the case or not.
The fact that the case was relisted, according to some observers, increases the odds that the Court will eventually take the case.
— John Elwood (@johnpelwood) November 3, 2014
Justices usually prefer to hear cases where the underlying circuit courts are split on the issue. In the King v Burwell case there was a split for a short time after the Fourth Circuit and the D.C. Circuit issued opposite rulings on the same day in July. However, the D.C. ruling was later vacated when the judges chose to rehear the case en banc. So at present there is no underlying circuit split. Could the Court decide to hear the case anyway?
Jonathan Adler at the Washington Post points out a few reasons SCOTUS may decide to do so even in the absence of a circuit split:
In King there is a serious argument that it would be better to
resolve the underlying question of statutory interpretation sooner
rather than later. The resolution of this litigation will alter the
calculus for many political and private actors considering how to
respond to the PPACA, and the statute contains various deadlines and
timeframes that may become harder to navigate the longer this litigation
drags on. Among other things, states may wish to reconsider whether to
create their own exchanges and seek additional support grant. Some
states that created their own exchanges are planning to shift to a
federal exchange; Oregon’s transition is already underway. A victory for the plaintiffs in King
could force them to reconsider. It might also prompt HHS to develop
rules to facilitate the state waiver process that begins in 2017. The
more time they have to do this, the easier it will be. Further, the
longer the IRS rule remains in place, the more disruptive it will be
should the Supreme Court ultimately decide that rule is illegal, a point
made by the petitioners in their briefing and highlighted by the WSJ. Of note, it appears some insurers are making contingency plans to prepare for the possibility that the King or Halbig plaintiffs prevail.
Adler also notes that, until now, the government has argued for expediting the various Obamacare related cases. However that changed when King was appealed to the Supreme Court. At that moment, “the Justice Department suddenly asked for more time to file its briefs and sought en banc review of Halbig.”
The bottom line is that we still don’t know what the Supreme Court will chose to do, only that today’s announcement may be an indication that some Justices want to take the case.