As the full D.C Circuit Court has agreed to rehear Halbig V Burwell, the case that threw out subsidies for state run healthcare exchanges, The Wall Street Journal examines why Harry Reid nuked the filibuster rules for judges:
Exactly as President Obama and Senate Democrats planned, the full D.C. Circuit Court of Appeals has moved to suppress a major challenge to ObamaCare. The gambit is no less remarkable for its nakedness.
Last week the full D.C. Circuit vacated the July decision that some insurance subsidies violate the law’s plain language and agreed to rehear Halbig v. Burwell en banc. ObamaCare’s text authorizes subsidies only through exchanges “established by the State,” so a three-judge panel ruled that the Internal Revenue Service was dispensing them illegally across the 36 exchanges established by the federal government.
Such straightforward statutory interpretation fails the D.C. Circuit’s own high standards for en banc scrutiny. As Washington attorney Adam White recently explained in these pages, since the 1990s the full D.C. Circuit has chosen to rehear merely one or two—and sometimes zero—of the 500 or so cases heard every year. The court’s standard for en banc hearings has been that a panel has overturned a D.C. Circuit precedent, which Halbig does not, or if a matter of “exceptional importance” is implicated, historically meaning some constitutional principle. Reading a statute does not rise to constitutional review.
The difference now is that Harry Reid last year packed the D.C. Circuit with three of President Obama’s nominees, so liberals now outnumber conservatives by eight to five not counting senior judges. The Senate Majority Leader nuked the filibuster rule for judges, allowing them to be confirmed with 51 instead of 60 votes, precisely so the court would become the garbageman to dispose of unpleasant legal challenges to the President’s regulatory decrees. ObamaCare is Exhibit A.
At a press conference on July 22, before the White House had even moved for en banc review in Halbig, Mr. Reid proclaimed that, “It seems clear to me that that decision will be overturned. In a matter of a couple hours, the Fourth Circuit disagreed. Now they’re going to have a hearing en banc.” When asked if Halbig vindicates his filibuster play, Mr. Reid replied, “If you look at simple math, sure does.”
The en banc review also fulfills the White House desire to delay for as long as possible any final judicial reckoning on its ObamaCare rewrite. Oral arguments are scheduled for the week before Christmas, which means an opinion might not emerge before spring, which likely delays a Supreme Court appeal into 2016. The political goal is to embed ObamaCare’s subsidies for as long as possible to intimidate the Justices if (or when) it comes to that.
Yet if Halbig is of “exceptional importance” to the D.C. Circuit, then the same applies to the Supreme Court. In July the Fourth Circuit Court of Appeals reluctantly upheld the subsidies in a case called King, creating a split in the appellate courts that the Supreme Court usually resolves. The D.C. Circuit’s new liberal majority is trying to erase this division and deny the Halbig plaintiffs their day at the High Court.
Michael Carvin, the lead attorney in King and Halbig, has already filed a cert petition asking the High Court to hear King. We hope at least four Justices grant the petition and settle the matter this term.
“There is no value to further percolation,” as Joshua Hawley and several other former clerks for Chief Justice John Roberts put it in a well-argued amicus brief for the King cert petition. The legal questions are uncomplicated and squarely in front of the Supreme Court. But the legal uncertainty is bleeding into health markets already, and if the illegal subsidies are ultimately withdrawn, the disruptions to individuals and businesses will be that much worse after a legal-political lag of several years.
The country would be better off with a quick, decisive resolution. And however the Justices rule, they would send a message to Mr. Reid to stay out of their chambers.