A vital part of the federal health care law will get a new review before the full bench of the U.S. Court of Appeals for the District of Columbia Circuit. In a two-page order released Thursday, a majority of the eleven-member court granted the Obama administration’s request to consider en banc the legality of subsidies being given to consumers to help them afford health care insurance, if they shop for it at a federal marketplace (“exchange”). Such exchanges exist in thirty-four states, and nearly five million consumers have already received subsidies.
By granting further review of the controversy, the en banc court wiped out a three-judge panel’s two-to-one ruling on July 22 finding that such subsidies under the Affordable Care Act can only be provided to those who seek insurance on an exchange directly operated by a state government — a potentially crippling blow to the new law. Only sixteen states have set up exchanges.
By granting further review, the D.C. Circuit has raised the chances that the administration will win in that court, as it did previously in the U.S. Court of Appeals for the Fourth Circuit. If there is then no conflict among appeals courts on the question, that could reduce the chances that the Supreme Court would feel a need to step in. However, the issue is pending in other lower courts, so a conflict remains a possibility.
The controversy has already reached the Justices in the case of King v. Burwell, in a petition filed by challengers to the subsidies seeking to overturn their defeat in the Fourth Circuit. The government has not yet replied in that case; this week, it received an extension until October 3 to file its response brief.
It is unclear at this point whether the D.C. Circuit’s grant of en banc review of the subsidies question will have any effect on the Supreme Court’s consideration. The Justices might opt to wait to see if a conflict in lower court exists, but they also could go ahead and grant review of the pending case. That would proceed more slowly than will the new review in the D.C. Circuit, however.
In ordering rehearing, the D.C. Circuit set the case for a hearing on December 17. It laid out a briefing schedule beginning on October 3 and due to be completed on November 17. The parties were cautioned that they had little chance of gaining extra time to file briefs.
Although the Circuit Court’s eleven active judges are expected to take part in the new review, two senior judges who were on opposite sides of the panel decision are also eligible to take part, if they wish. They are Senior Circuit Judges A. Raymond Randolph and Harry T. Edwards. Edwards dissented from the panel ruling.