Is there any doubt that the U.S. Supreme Court will take up Obamacare subsidies in its upcoming term? It’d be a heck of a surprise if they passed, considering the circuit split and rhe certiorari petition sitting on their desk.

The Fourth Circuit case, King v. Burwell, just reached the docket. The D.C. Circuit case, according to SCOTUSblog, could be headed for en banc review after the Obama administration appealed.

4th Cir.: Federal ACA Subsidies a Matter of Chevron Deference

The appeal out of the Fourth Circuit, the first to reach the cert. pool, is a challenge to that court’s holding that this is a ridiculously close call, but amounts to deferring to an agency’s interpretation of an ambiguous statute.

Contrary to the Fourth Circuit’s holistic take, the D.C. Circuit’s majority focused narrowly on Section 36B. And that provision only provides for subsides for insurance policies “enrolled in through an Exchange established by the State,” which supports the plaintiffs’ contention that the IRS was not authorized to provide tax credits to individuals using the federal exchange.

To the majority, that text is pretty clear – state exchanges are eligible for subsidies, while the federal HeathCare.gov exchange is not. The majority wrote that it came to its holding “reluctantly,” of course, as it notes that if its holding stands, Obamacare will collapse absent legislative intervention.

When Will Cert. Happen?

Much like the gay marriage cases, the only thing that can stop the seemingly inevitable march to the Court is en banc petitions. The Supreme Court could hold over cases that have already reached the cert. pool until more cases work their way up the system. Doing so gives the Court more viewpoints and lower court opinions to consider. Either way, both cases seem like a when, not if, proposition.

Related Resources:

  • Snippets: Which Justice Are You?, ACA Subsidies, ‘Notorious RBG’ (FindLaw’s U.S. Supreme Court Blog)
  • Algorithm Predicts SCOTUS Case Outcomes; Beat It in FantasySCOTUS (FindLaw’s U.S. Supreme Court Blog)
  • An Odd Motion, Ariz.’s Botched Execution, and the Supreme Court (FindLaw’s U.S. Supreme Court Blog)

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