Two federal appeals courts issued conflicting decisions about the future of ObamaCare on Tuesday.
In one, the Halbig v. Burwell decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the Affordable Care Act means what it says: ObamaCare insurance subsidies are only available in states that have established their own health-insurance exchanges, and an IRS rule that tried to make these subsidies available in all states – even those, such as Illinois, which did not create their own insurance exchanges – is invalid.
In the other case, King v. Burwell, the U.S. Court of Appeals for the Fourth Circuit, which sits in Virginia, reached the opposite conclusion, ruling that Congress intended to make subsidies available in all states – even though that’s not what the law says – and therefore the IRS rule could stand.
The decisions are important because, as Newsweek has put it, if the IRS rule is ultimately struck down, the entire ObamaCare system “could come crashing down in the 36 states that have opted not to run their own exchanges.”
But what happens now, with conflicting decisions from different courts?
The short answer: nothing yet.
The Courts of Appeals could rehear the cases
In either of these cases, the losing party – the government in Halbig, or the plaintiffs in King – has 45 days to ask the Court of Appeals in question to rehear the case “en banc” – that is, with all of the judges of the court hearing the case instead of just the usual three-judge panel. A Court of Appeals can rehear the case if a majority of its regular active judges votes to do so.
Today’s ruling in Halbig will not take effect until the lower court orders the IRS to stop enforcing its rule, as the Court of Appeals has directed. The lower court will only do that after it receives a “mandate” from the Court of Appeals. And the Court of Appeals will not issue its mandate until the 45 days to petition for rehearing have passed or the court votes to deny rehearing, whichever is later. The Court of Appeals has seven days after that to issue the mandate.
If either Court of Appeals decides to rehear its case en banc, then today’s decision in that case will be vacated – it will be as though it was never issued, and the court’s new decision after rehearing will control. Democrat-appointed judges have a strong majority on both courts, so the government probably has some confidence that it will in any rehearing.
An en banc rehearing in either case would almost certainly take six months to a year.
The Supreme Court could hear the case
It’s therefore no surprise that the government reportedly intends to seek en banc review in the Halbig case. The plaintiffs could also do so in the King case.
But they don’t have to – the losing side in either case could instead go straight to the Supreme Court to seek review there.