King v. Burwell: The OTHER IRS Subsidy Case may go straight to the SCOTUS (UPDATED)
2018 MIDTERM ELECTION
Time: D H M S
Thanks to contributor Britt M. for pointing me towards an interesting development in the other Federal Tax Subsidy case (ie, the one not named "Halbig"). As you'll recall, last week the DC Circuit Court panel ruled in favor of the plaintiff in the Halbig v. Burwell case, but the same day, the 4th Circuit Court panel ruled in favor of the HHS Dept. on an almost identical case (King v. Burwell).
It was expected that both cases would then move to the full courts of their respective Circuits (DC for Halbig, the 4th for King). In both cases the Obama administration is heavily favored due to the political makeup of the courts.
However, it looks like the King plaintiffs realized this and decided to cut to the chase, skipping past the full 4th Circuit and pushing straight for the SCOTUS. The Obama administration, meanwhile, wants the full DC Circuit to hear their appeal of the Halbig case...after which whichever side loses will undoubtedly push it up to the SCOTUS as well.
Opponents of Obamacare who lost their legal case over federal subsidies last week are now appealing directly to the Supreme Court, CNBC reported, but it is not clear whether the Supreme Court will take the case.
As I've noted before, however, the wheels of justice grind slowly, so it's very likely that even skipping the full 4th Circuit will still mean that a full 2nd open enrollment period will be under the ACA's belt before a SCOTUS decision is announced...assuming the SCOTUS takes the case at all:
University of Michigan law professor Nicholas Bagley tweeted that the Court could decide whether to take the case in the fall and, if it accepted it, could hear oral arguments in the winter and announce a decision in spring 2015.
I'm not much of a courtroom expert, but I'd imagine that if the SCOTUS declines to take the King case, they probably won't take the Halbig case either (unless the cases have more differences than I know of). On the flip side, if they do decide to take the case, then I'd imagine that whatever their ruling on that is, Halbig would become moot anyway, since a) if they rule in favor of the King plaintiffs, the Federal Exchange subsidies are presumably dead (making Halbig unnecessary), and b) if they rule against the King plaintiffs, it's highly unlikely that they'd change their tune a few months later over essentially the same case.
Then again, who the hell knows? Maybe they'll take both cases...
Unless the Court were to return from its summer recess to take up the issue in a special session, the earliest that it would be likely to act on the dispute would be this fall, when it will return for a new Term. Such special sittings have occurred in the past when a truly important and urgent national controversy had reached the Justices.
In any event, the Court is unlikely to take any action on the new petition at least until the federal government has filed an answering brief.