by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP
*This post originally appeared on Balkinization
On July 22, in Halbig v. Burwell, a panel of the D.C. Circuit ruled 2-1 that low income families cannot get the tax subsidies the Affordable Care Act granted to enable them to afford health insurance, if their states opted to have the federal rather than the state government set up health insurance exchanges. Within hours, in King v. Burwell, a unanimous panel of the Fourth Circuit held just the opposite, that subsidies are available on all exchanges established under the Act. (I filed amicus briefs on behalf of Families USA in both cases.)
In making its ruling, the D.C. Circuit panel simultaneously issued an order on its own initiative making clear that its judgment was not effective until the full Court of Appeals decided whether to reconsider the case. The panel perhaps recognized that the other judges on the Court might view the decision as out of step with the Circuit’s precedents. A decision by the en banc Court to reconsider will automatically vacate the panel opinion. If the majority of the Court then concludes that the panel decision was wrong, they will issue an opinion reflecting the correct result.
In arguing against en banc review in a Volokh Conspiracy post on August 5, Professor Jonathan Adler quotes with evident approval a 17-year old disquisition by Judge Harry Edwards, the dissenter in Halbig, regarding the standards for en banc review. The temptation of scoring a “gotcha” against Judge Edwards appears to have displaced reasoned analysis to whether those views make sense in this case. For example, Professor Adler commends Judge Edwards’ 1987 view regarding the limited value of having the entire D.C. Circuit reconsider en banc the 2-1 vote of the three-judge panel. A vote of 6 out of 11 judges, it is claimed, has no greater “legal validity” than a vote of 2 out of 3. If the implication is that any panel decision is as likely as an en banc ruling to be correct, then it was overbroad in 1987, and it is particularly fallacious here. Human fallibility being what it is, judges sometimes get an answer wildly wrong. As a matter of probability and logic, 6 judges are less likely to go off the deep end than 2.