Good news for the Obama administration: the U.S. Court of Appeals for the District of Columbia Circuit has granted the administration’s request to rehear the court’s July 22 decision in Halbig v. Burwell. That decision struck down an Internal Revenue Service rule that made ObamaCare insurance subsidies available in all 50 states, even though the Affordable Care Act says the subsidies should only be available in states that have created their own insurance exchanges. (Most states, including Illinois, have not created their own exchanges.)
The decision to rehear the Halbig case means that the court’s original decision is vacated, and now all regular active judges of the court, not just the usual three-judge panel, will consider the case and issue a new decision. The full court will hear arguments in the case on Dec, 17 and then issue a new decision weeks or months after that.
The D.C. court’s decision to rehear the case also means the U.S. Supreme Court is not likely to take up the legality of ObamaCare subsidies anytime soon.
If the D.C. court had not decided to rehear the case, there would have been a split among the federal circuits. That’s because the 4th Circuit Court of Appeals issued a conflicting decision upholding the IRS rule in King v. Burwell, also on July 22. The Supreme Court often takes cases to resolve a “circuit split” – but, for now, there is no longer a split to resolve. (The plaintiffs in King v. Burwell have asked the Supreme Court to take that case up now anyway, and it’s possible, but unlikely, that the court will do so.)
Other challenges to the IRS rule are pending in federal district courts in Indiana and Oklahoma. The district court decisions in those cases, which are still in their early stages, will likely lead to decisions by the 7th and 10th Circuit federal appellate courts. New cases may also be filed in the other federal circuits. If any of those circuits strike down the IRS rule, as the original Halbig decision did, then the Supreme Court would likely step in.
Meanwhile, the country will have to keep living with ObamaCare – and with uncertainty about the future of health care in America.