In their continuing effort to give the Supreme Court another shot to gut the Affordable Care Act, opponents of the Act last week asked the Court to hear King v. Burwell, the Fourth Circuit case that upheld the IRS rule confirming that tax credits and subsidies made available by the ACA are available on federally-facilitated Exchanges.  But surely the Act’s opponents must know that the next move shouldn’t belong to the Supreme Court, it should belong to the full D.C. Circuit, which has been asked by the government to rehear Halbig v. Burwell, a case that invalidated the same IRS rule at issue in King.  According to some ACA opponents, the full D.C. Circuit shouldn’t rehear Halbig.  They couldn’t be more wrong.

In an op-ed in the Wall Street Journal this week, Adam White writes that “Halbig checks none of the[] boxes” that would make rehearing by the full court appropriate.  Specifically, he claims that although “en banc rehearing is appropriate for what the federal appellate rules call cases of ‘exceptional importance,’” Halbig doesn’t qualify.  Not so.

To advance the ACA opponents’ political attack on the law, White seems to be extending to the federal appellate rules the same method of statutory construction that the challengers in Halbig applied to the ACA—looking at one provision of the law in isolation, rather than in context.  But if White had examined all of the rule’s text—not just one isolated phrase—he would have seen that the federal appellate rules themselves make clear that Halbig is a case of “exceptional importance.” 

Federal Appellate Rule 35(b)(1)(B) provides that a petition is “of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.”  That standard is clearly satisfied by the conflicting rulings out of the Fourth and D.C. Circuits.

In a separate post on The Volokh Conspiracy also attacking en banc review, Jonathan Adler at least acknowledges that the federal appellate rules “identif[y] a conflict with another circuit as a potential reason for en banc review.”  But he argues that the “D.C. Circuit has rarely granted en banc review on this basis” and points to recent cases in which the D.C. Circuit denied en banc rehearing, but the Supreme Court later granted cert.  That’s all true, but utterly beside the point.  Of course the D.C. Circuit doesn’t grant en banc rehearing in every case in which it plausibly could – the Supreme Court doesn’t hear every case it plausibly could either – but the question is whether en banc rehearing is appropriate here.  And as the federal appellate rules make clear, it plainly is. 

Adler also attempts to play “gotcha” with Judge Harry Edwards, who dissented from the panel’s decision in Halbig and rightly noted that these cases are simply part of a “not-so-veiled attempt to gut” the ACA, by quoting at length from an opinion Judge Edwards wrote in 1987.  But as Adler’s lengthy quotation makes clear, Judge Edwards frowned upon the court’s granting en banc review simply because some judges believed the panel’s decision was either “‘clearly wrong’” or “‘highly dubious.’”  Again, this argument is beside the point.  Although the panel’s opinion in Halbig was clearly wrong, that’s not the only reason en banc review is appropriate: it’s appropriate because there’s a split of authority with the Fourth Circuit.  

It’s not difficult to imagine why the ACA’s opponents don’t want the D.C. Circuit to agree to rehear Halbig: if it does, the panel’s decision will be vacated in the same Order in which the court grants en banc review, eliminating the Circuit split.  At that point, if this were an ordinary case, the Supreme Court would either deny review in King or hold the case (that is, defer making any decision) until the D.C. Circuit issued its en banc decision.  After all, not only would there be no formal Circuit split, but when the D.C. Circuit ultimately issues its en banc decision, there’s a good chance the full court will agree with the Fourth Circuit.  And then, there’d be no division among the lower courts; in an ordinary case, the Supreme Court would most likely deny the petition for review in King. 

Adler pushes back against this point, suggesting that Supreme Court review is “inevitable” and that en banc rehearing in the D.C. Circuit will only delay that inevitability.  But there’s no reason to think Supreme Court review is inevitable.  Yes, there are currently two other challenges against the rule pending, but there’s every reason to expect that the judges in those cases—like every other judge who has heard these challenges other than the two D.C. Circuit judges in the Halbig majority —will recognize what the text, purpose, and history of the ACA all make clear: the ACA makes tax credits and subsidies available to all qualifying Americans, regardless of where they live.  And if all of the lower courts agree that the rule is valid, there will be no reason for the Supreme Court to intervene.

The ACA opponents may make a lot of different arguments in their hope that the D.C. Circuit judges will decide not to rehear Halbig.  But those arguments don’t make much more sense than their arguments about the proper interpretation of the ACA.  Fortunately, the full D.C. Circuit is likely to recognize that.