As we noted in our various blogs and communications on the subject (HEAL Advisory and HEAL Blog), the United States Court of Appeals for the District of Columbia Circuit’s action today, to rehear in December the Halbig case (Halbig v. Burwell, D.C. Cir., No. 14-508 ), challenging Obamacare subsidies in the federal health exchange, is not unexpected given the current makeup of the Court. This development now makes it more likely that the Supreme Court will not take action on the King cert petition (King v. Burwell, U.S. 4th Circuit , No. 14-1158) until after the DC Circuit decides the Halbig case, which will be argued on December 17th. The DC Circuit’s likely action (either vacating the panel opinion or overturning it) also will erase the split in the circuits and thus make it less likely that there will be four SCOTUS Justices who will vote to take the case.
