Bench Memos

King Might Be Headed to the Supreme Court; Perhaps Halbig To Follow

Last week, just over a week since what was probably the fastest circuit split in history, the plaintiffs in King v. Burwell filed their petition for certiorari with the Supreme Court.  That puts the case on a fast track to be considered by the Court during the upcoming Term.  And a good thing, too: this issue is already causing significant uncertainty in the insurance markets and ought to be decided conclusively as soon as possible.

Here’s how the process works: normally parties have 90 days to petition from an adverse ruling, but this issue is of such national importance that petitioners have moved forward with lightning speed.  The government will have until September 3, 2014 to file a brief in opposition to certiorari, and then the petitioners will have another 14 days to reply.  That means the briefing for the case should be done by mid-September, so the Court could be discussing the case and voting on certiorari as early as October.  An October conference would leave ample time to get on the oral argument calendar for this term.

The administration and its surrogates have been pushing the line that the split between the D.C. Circuit’s Halbig case and the 4th Circuit’s King decision is insignificant and assuring court watchers that a D.C. Circuit en banc panel will vacate the Halbig ruling.  

But I’m not so sure.

Clearly this type of case is exactly what the President had in mind when he made his court-packing blitz last year.  Rather than a 4-4 split of Republican and Democratic nominees on the D.C. Circuit, we now have a 4-7 split, with four of those Democratic nominees having come from this president, three of whom were specifically chosen in a campaign to eliminate the filibuster and pack the court.  Although the D.C. Circuit historically does not take many cases en banc — regarded as a sign of its collegiality — it’s possible that things have changed since the president’s nominees were seated.

But now those judges will have to decide whether they want their first high-profile act on the court to be one that is baldly political: overturning a meticulously-reasoned decision that overturned the IRS’s attempt to rewrite the Affordable Care Act.  It would make the new judges look like presidential pawns who are attempting to save his bacon, lowering them to the level of the disgraced and politicized IRS itself. 

Even if the D.C. Circuit judges are willing to take the fall for the President in this case, there probably won’t be time to undo the circuit split before the Supreme Court makes its decision about whether to hear the case. (If the D.C. Circuit could rush through it, that would look obviously political.) The government’s motion for rehearing en banc is due soon, but the court often takes months to decide the motion, schedule any additional briefing, and set an en banc hearing date. 

Thus the Supreme Court will likely be faced with an active circuit split when it considers the King petition.  It could, of course, refuse to decide until the outcome of the split becomes clear, but I think that is unlikely.  Even if the current split were resolved by a D.C. Circuit flip-flop, an Oklahoma district court is likely to issue an opinion soon that could easily lead to a 10th Circuit decision against the Administration.  Another case working its way through the lower courts in Indiana could deepen the split.  This issue is of obvious national importance, and fits into a pattern of executive overreach by this Administration that the Court has rebuked repeatedly (and often unanimously).  

The American people deserve to have the issue decided once and for all, and sooner rather than later.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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