What the D.C. Circuit Isn’t Doing Today

Joey Meyer, Kelly Landis

The big courtroom at the U.S. Court of Appeals for the D.C. Circuit is empty today.  It wasn’t supposed to be. 

In the wake of the Supreme Court’s decision to hear King v. Burwell, a challenge to the availability of tax credits under the Affordable Care Act, the D.C. Circuit shelved its consideration of Halbig v. Burwell, the parallel challenge that was on its docket for rehearing en banc (that is, by the full court) today.

The Supreme Court’s decision to hear King was unusual on a couple of levels.  First is the absence of a circuit split, i.e., disagreement on an issue among the lower courts.  The existence of a circuit split is one of, if not the most, important factors the Court considers in deciding whether to hear a case.  Shortly before granting review in King, the Court had denied review of seven petitions to hear same-sex marriage cases, even though those cases arguably merited review absent a split because they concerned a constitutional issue of national importance and millions of Americans were being denied a fundamental right.  In an interview shortly before the Court denied review in the marriage cases, Justice Ruth Bader Ginsburg noted the lack of a split among the lower courts on the issue, commenting that “when all the courts of appeals are in agreement there is no need for us to rush to step in.”  While two federal courts did reach different decisions on the tax credit question in July, the circuit split was eliminated when the D.C. Circuit voted to rehear the case as a full court, vacating its prior panel decision.  That’s the part that really makes clear how anomalous the Supreme Court’s decision to hear King was:  it is exceedingly rare for the Court to pre-empt an appellate court’s en banc consideration of an issue, particularly when that en banc consideration eliminated any split among lower courts on the issue.

It’s easy to interpret the Court’s decision to hear King as a vindication of a cynical assertion from the lead attorney for the law’s challengers. In July, at an event held by the Heritage Foundation, Michael Carvin pronounced that the Supreme Court’s conservatives wouldn’t “give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.”  When asked if he thought he might lose any of the Court’s five conservatives in King, he smiled and replied, “Oh, I don’t think so.”    

But that view gives the Court and its Justices no credit.  It’s also anathema to the stated view of Chief Justice John Roberts, who in a speech this past summer said he fears that Americans will come to view the Court as a “political entity.”  He insisted that such a perception is “not an accurate one about how we do our work.” 

Notwithstanding the Chief Justice’s statements, supporters of the King lawsuit have made clear that they continue to look to the Court to do their political dirty work.  For example, Senator Mitch McConnell (R-KY), soon to be Senate Majority Leader, clearly expects the Justices to do from the bench what he and his conservative colleagues have not been able to accomplish legislatively. Earlier this month, McConnell referred to the King case as a “mulligan” and an “opportunity presented to us by the Supreme Court, as opposed to actually getting the president to sign a full repeal.”  Another conservative Senator, John Barrasso (R-WY), the Chair of the Republican Policy Committee, has also said that while Republicans will continue to try to repeal the ACA, they’re also “look[ing] to the courts” to get rid of the law.

The wishes of these Senators aside, the Supreme Court is supposed to work by applying the law, not by following the political desires of elected officials. The application in King of well-established principles of statutory interpretation confirmed by Justices of all ideological stripes will make clear that the Court should uphold the nationwide availability of tax credits under the ACA.  Just last Term, Justice Antonin Scalia reaffirmed the “fundamental canon of statutory construction that the words of a statute must be read in their context, and with a view to their place in the overall statutory scheme.”  If the Justices read the ACA as they would any other law—the entire statute in context, not one four-word phrase in isolation as the Act’s opponents would prefer—they will recognize that the statute requires that tax credits are  available nationwide.

That D.C. Circuit courtroom may be empty today, but you can be sure that the Supreme Court will not be when the Justices hear the King case in early March.  The attention of the nation will be fixed on the Court, eager to see what it ultimately does.  The text, history, and purpose of the statute all make clear that tax credits should be available nationwide, and when the Justices issue their decision later in the year, they should follow the law and rule accordingly.  To do otherwise would deprive millions of Americans of health care coverage and jeopardize the health insurance industry as a whole.  And such a ruling would likely be viewed as a purely political decision, further eroding the reputation of the Court as an impartial institution that puts law over politics.