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Pressing for speed on health care subsidies

Seeking to get early action by the Supreme Court on the major test case on access to federal subsidies to help people buy health insurance, attorneys for the challengers made an unusual request on Wednesday.  In a letter to the Court, the lawyers asked the full Court to weigh any request by the federal government for more time to answer the appeal, which involves a threat to the subsidy program in thirty-four states.

“This case,” the letter said, “involves a matter of urgent public importance, and [the challengers] therefore oppose any attempt to delay its resolution.”  The letter strongly implied that the Court should take steps to insure that the government responds quickly.  That response is now due on September 3, but a Court rule allows requests to extend such deadlines.

Last Thursday, the case of King v. Burwell was filed at the Court, raising the challengers’ point that the government cannot legally provide subsidies to lower-income individuals who seek to buy health insurance on the marketplaces (“exchanges”) that were set up under the new Affordable Care Act if the exchange is run by the federal government, rather than by a state.

The challengers to subsidies on the federal exchanges have argued that Congress made clear in the Act that those were to be available only on the state-run exchanges.  That argument was rejected, however, by the U.S. Court of Appeals for the Fourth Circuit, leading the challengers to swiftly take the case to the Supreme Court.

Under the Court’s Rule 30, any party seeking more time to file a response to a petition can simply write a letter to the Court’s clerk, explaining why more time is needed.  Such requests for an initial extension of time — and they are quite common when the federal government is opposing a petition — are generally granted as a matter of right.  That action is uniformly taken by the clerk of the Court.

The rule specifies, however, a kind of right to appeal to a Justice for “any party aggrieved” by the clerk’s grant of an extension.   That provision was cited in the lawyers’ letter Wednesday, specifically requesting that “any application by [the government] for an extension of time . . . be submitted to the full Court for consideration.”

The dispute over the subsidy program for the federally run insurance exchanges is very likely to be reviewed by the Court, because two federal appeals courts have reached opposite conclusions about the legality of those subsidies for people shopping for insurance on the federal marketplaces.

The government lost on that point in the U.S. Court of Appeals for the District of Columbia Circuit, but it chose not to go straight to the Supreme Court — as the challengers did last week to contest the Fourth Circuit’s ruling.  Instead, the government opted to seek rehearing by the full D.C. Circuit, in an en banc proceeding.   If that request is granted, it could stretch out the time to resolve the issue by several months, at least.

It is in the interest of the challengers to get the legal point settled as quickly as possible, because the longer it takes to do so, the more controversial it would be to take away the subsidies that some 4.7 million people have already received for shopping on the federal exchanges.

But, for the same reason, the government has an interest in having those subsidies in place as long as possible.

If the government is going to seek an extension of time in the Supreme Court, it presumably would do so before the current deadline — September 3 — is reached.

Recommended Citation: Lyle Denniston, Pressing for speed on health care subsidies, SCOTUSblog (Aug. 6, 2014, 6:04 PM),