D.C. Circuit Grants En Banc Review of Case Against Obamacare Exchanges

by Ed Whelan

Loaded up with its new Obama appointees, the D.C. Circuit has granted the Obama administration’s petition for en banc review of the panel decision that ruled, 2-1, in Halbig v. Burwell that the provision of Obamacare that authorizes tax credits for insurance purchased on an exchange “established by the State under section 1311” doesn’t authorize tax credits for insurance purchased on an exchange established by the federal government.

As usual, the grant of en banc review also vacates the panel decision. So that means that there is no longer a conflict between the D.C. Circuit and the Fourth Circuit on the issue. The absence of a conflict makes it much less likely that the Supreme Court will grant the pending petition seeking review of the Fourth Circuit ruling. There are, however, several other cases in the pipeline, so, depending on how the en banc D.C. Circuit and the other courts rule, today’s action might simply defer the day of reckoning at the Supreme Court on this matter.