President Obama signs the Affordable Care Act
As Constitution Daily reported in July, a divided three-judge panel struck down tax subsidies provided to residents of 34 states who purchased new health care plans on exchanges established by the federal government.
“Because we conclude that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges ‘established by the State,’ we reverse the district court and vacate the IRS’s regulation,” said Judge Thomas B. Griffith, writing for the 2-1 majority in Halbig v. Burwell.
In his dissent, Judge Harry Edwards spared no words.
“This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act,” he wrote. “Because the proposed judgment of the majority defies the will of Congress and the permissible interpretations of the agencies to whom Congress has delegated the authority to interpret and enforce the terms of the ACA, I dissent.”
With today’s order, Judge Edwards will have an opportunity to vindicate his position. Oral arguments before the full 11-person bench are slated for 9:30 a.m. on December 17. And with the recent hard-fought confirmations of four new judges, the Obama administration has reason to be hopeful.
If a majority of the court is convinced of the government’s argument in favor of broader interpretation, the panel’s ruling will be reversed, thereby eliminating a split among the circuit courts and decreasing the likelihood of Supreme Court intervention.
If the circuit upholds the panel’s ruling, however, the case will be ripe for picking. Indeed, Obamacare challengers have already asked the Supreme Court to accept review of King v. Burwell, in which a unanimous Fourth Circuit panel upheld the subsidies.
For more commentary on the case, listen to our recent podcast with Michael Cannon, director of health policy studies at the Cato Institute, and Nicholas Bagley, assistant professor at the University of Michigan Law School. Cannon is a co-creator of the argument against the ACA tax subsidies; Bagley is a leading critic of the lawsuit.
You can also watch Jeffrey Rosen, president and CEO of the National Constitution Center, as he discusses the D.C. Circuit and Fourth Circuit rulings on MSNBC.
For more news on health care and the Constitution, explore the blog.
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