On Friday, the Justice Department appealed the
Halbig decision by a D.C. Circuit three-judge panel to the full court. In
Halbig, the panel ruled that a literal reading of the Affordable Care Act's language on subsidies would restrict them just to people living in states that have established their own exchanges, leaving 36 states—and millions of people—
out of the system and endangering the law.
In an appeals court filing Friday, the Justice Department said that if last week's ruling is ultimately sustained, the decision will impose a severe hardship on millions of people who are receiving tax credits through federally facilitated exchanges.
The Justice Department said the disruption threatened by the panel majority's "erroneous interpretation" presents a question of exceptional importance warranting consideration by the full court. A majority would have to agree to the Justice Department's request.
The department also noted that a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond unanimously came to the opposite conclusion last week, ruling that the Internal Revenue Service correctly interpreted the will of Congress when it issued regulations allowing health insurance tax credits for consumers in all 50 states.
The full court will almost certainly hear the appeal, and will certainly consider the decision by the 4th Circuit Court, and will probably overturn the three-judge panel. That decision in the 4th Circuit, meanwhile,
has been appealed to the U.S. Supreme Court, which could hear the case in the fall.
If this was a regular case, and the Supreme Court a typical SCOTUS, the suits would die as soon as the D.C. Circuit reverses the three judges. The two circuit courts will be in agreement, and the Supreme Court wouldn't have disputing decisions to settle. The problem is, the SCOTUS conservatives have proven more than happy to take on the law, or at least chunks of it. What they'll do with this one is anyone's guess.