Halbig v. Burwell

  • September 5, 2014
    Guest Post

    by Brianne Gorod, Appellate Counsel for the Constitutional Accountability Center.

    This post originally appeared on the Constitutional Accountability Center's Text & History Blog.

    Ever since three-judge panels on the Fourth Circuit and the D.C. Circuit issued conflicting rulings in July on the availability of tax credits under the Affordable Care Act (ACA), the opponents of the law have been trying to rush their case to the Supreme Court.  That’s where they apparently think they have their best shot at succeeding in what D.C. Circuit Judge Harry Edwards called their “not-so-veiled attempt to gut” the law.  But thanks to an Order just issued by the full D.C. Circuit, their chances of getting the case in front of the Supremes just got a lot lower.

    The two cases involved are just the latest salvo in the ACA opponents’ continuing efforts to kill the ACA by any means possible.  In these challenges, the opponents of the law argue that the ACA, which was enacted to make health insurance affordable for all Americans, doesn’t permit people to receive the tax credits that actually make it affordable if they purchase their insurance in one of the 36 states that have opted to let the federal government run their Exchange.  Thus, they argue, an IRS rule confirming that tax credits are available to all qualifying Americans, regardless of where they live, is invalid under the statute. 

    It’s an argument that shouldn’t hold water in any court.  The opponents of the law rest their argument on one four word phrase—“established by the State”—but ignore the text of the rest of the 900-some page statute that makes it clear that federally-facilitated Exchanges are functionally the same as state-established Exchanges.  Even Justice Scalia should recognize that’s no way to interpret a statute.  As he explained just last year, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."  Here, reading the words of the statute in context makes clear that tax credits should be available to all qualifying Americans.  Fourth Circuit Judge Andre Davis called the argument made by the law’s opponents “tortured” and “nonsensical.” 

  • September 5, 2014

    by Caroline Cox

    Simon Maloy argues in Salon that the decision by the U.S. Court of Appeals for the D.C.  to hold an en banc rehearing of Halbig v. Burwell represents a major victory for Obamacare supporters.  Richard Wolf of USA Today asserts that the rehearing illustrates the impact of the president’s appointed judges.  Read more about the Halbig case on the ACSBlog.

    In The New York Times, David Firestone writes on the preliminary injunction entered by Judge Peter C. Economus of the U.S. District Court for the Northern District of Ohio which blocks efforts to limit early voting in Ohio.

    Dominic Rushe, Lauren Gambino, Rory Carroll, and Mark Guarino report for The Guardian on the arrests of hundreds of fast-food workers protesting against low wages in cities throughout the country.

    Matt Apuzzo writes for The New York Times that Stuart F. Delery will replace Tony West in the Justice Department.  Delery will be the highest ranking openly gay man to serve in the DOJ. 

    In The Washington Post, Sari Horwitz, Carol D. Leonnig, and Kimberly Kindy report that the Justice Department will launch a civil rights investigation into the Ferguson, Mo., Police Department.  

  • September 4, 2014

    by Caroline Cox

    The U.S. Court of Appeals for the D.C. Circuit ruled this morning that it will hold an en banc rehearing in Halbig v. Burwell, the case dealing with the legality of some Affordable Care Act subsidies, reports Zoe Tillman in The National Law JournalJeffrey Toobin explains in The New Yorker how the fight in Halbig is also a fight over whether textualism should serve as a dominant legal theory.

    Ben Protess reports in The New York Times on the departure of Tony West from the Department of Justice. West delivered remarks at the 2013 ACS National Convention.

    In Politico, David Rogers reports on a case between the Justice Department and immigrant-rights groups over whether illegal immigrants should be provided counsel.

    U.S. District Court Judge Martin Feldman’s ruling to uphold Louisiana’s ban on same-sex marriages carefully appeals to the Supreme Court’s swing voter, argues Garrett Epps in The Atlantic.

    In Slate, Dahlia Lithwick writes on what the justice system should learn from the recent ruling that, thirty years after their convictions in a 1983 murder case, two mentally disabled half-brothers are innocent. 

  • August 20, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue. The Halbig case [D.C. Circuit Court panel opinion negatively impacting the federal government’s effort to help low-income persons obtain health care insurance] presents a prime example. On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc. The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.

    To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review. The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuitallowing such subsidies. A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth. If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

    The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response. Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases. But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict. D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.

    Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue. The other cases cited presented no conflict. Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.

  • August 8, 2014
    Guest Post

    by Nicholas Bagley. Bagley is an Assistant Professor at University of Michigan Law School. 

    *This post originally appeared on The Incidental Economist. 

    Now that the government has asked the full D.C. Circuit to rehear Halbigsome commentators have suggested that it’s an inappropriate candidate for en banc review. A Wall Street Journal op-ed from a lawyer representing a right-wing health-care think tank, for example, says that en banc review ought to be reserved for “cases raising serious constitutional issues.” Halbig, though, is just a “straightforward statutory interpretation case.”

    This is wrong for so, so many reasons. Under the Federal Rules of Appellate Procedure, a case can be taken en banc if it involves “a question of exceptional importance.” The rule does not say “a constitutional question of exceptional importance.” No judge, to my knowledge, has ever suggested that the rule be read so narrowly.

    To the contrary, the rules are drafted in open-ended terms—“exceptional importance”—because cases differ in their importance along many different dimensions. Some cases are trivial in themselves but present novel legal questions that will affect hundreds of other cases. Others are of “exceptional importance” because they implicate questions of faith or principle.