D.C. Circuit Court Is Right to Rehear Halbig v. Burwell

The full D.C. Circuit’s decision to rehear Halbig wasn’t political.


Arguing that the full D.C. Circuit Court of Appeals should not have agreed to rehear Halbig v. Burwell, the case that invalidated an IRS rule confirming that tax credits made available by the Affordable Care Act are available on federally facilitated exchanges, you write that President Obama “packed” the D.C. Circuit, and that’s why the court agreed to hear a “straightforward statutory interpretation” case that doesn’t actually merit en banc review (“Why They Packed the Court,” Review & Outlook, Sept. 8). This is wrong on all counts.


No one “packed” anything. President Obama merely acted to fill existing vacancies on the D.C. Circuit—a constitutional duty of the president.


The full D.C. Circuit’s decision to rehear Halbig wasn’t political; it was a straightforward application of Federal Appellate Rule 35, which governs when federal appeals courts should rehear cases en banc. According to your editorial, a case is of “exceptional importance” when it involves some “constitutional principle.” But that’s not what Rule 35 says. The rule provides that a case is of exceptional importance when “the panel decision conflicts with . . . decisions of other . . . Courts of Appeal.” That standard was met here because the Fourth Circuit upheld the IRS rule.


The Halbig majority turned “straightforward statutory interpretation” on its head. Most notably, it ignored that words in a statute must be read in context, as Justice Antonin Scalia recently pointed out in a different case.


Finally, you suggest the Halbig plaintiffs deserve “their day at the High Court.” But most litigants don’t get their case to the Supreme Court. And if the Court does what it would normally do in this situation, the Halbig plaintiffs won’t either because the Supreme Court will wait to see what the D.C. Circuit does next.