The full D.C. Circuit Court of Appeals will take a second look at a lawsuit against Obamacare subsidies, after ruling earlier this summer that states using the federal exchange aren't eligible to receive federal subsidies.
In July a three-judge panel ruled against subsidies, but today's decision to reconsider the case en banc (with all 13 judges) means the prior decision will be vacated. And that's good news for the government — whereas the three-judge panel skewed Republican, the full court is mostly made up of Democratic appointees.
In Halbig v. Burwell, the challengers argue that language in the 2010 Affordable Care Act implies that only states that created their own exchanges were eligible for subsidies. The government has argued that it always intended for everyone to be eligible for subsidies. In July, the D.C. Circuit panel ruled in favor of the challengers and, hours later, the Fourth Circuit Court of Appeals ruled in favor the government. After those rulings the Obama administration asked the D.C. Court to hear the case en banc.
Brent Kendall at The Wall Street Journal notes that different rulings from appeals courts can prompt action from the Supreme Court, but with today's decision to grant the administration's request — and vacate the ruling against subsidies — "clouding the prospect that the Supreme Court will eventually get involved." At the same time, if the full court rules against the government, then the likelihood of the Supreme Court weighing in would greatly increase. According to Kendall, the court will hear oral arguments in December.