Bench Memos

King Cert Petition Delayed

The Supreme Court just granted the government an additional 30 days to respond to the cert petition in King v. Burwell, the case challenging IRS attempts to expand Obamacare subsidies to states that didn’t set up exchanges.

As I wrote earlier, the speed with which the King plaintiffs filed their cert petition meant that the Supreme Court could vote on whether or not to take up the case as early as October. Now that the court has granted an extension, that moves the likely date of consideration to November, by my count. While that still allows ample time for the Court to fit the case onto this term’s schedule, it increases the likelihood that the D.C. Circuit will have already decided whether or not to hear Halbig v. Burwell – the case decided almost simultaneously with King that came to the opposite conclusion.  

This morning’s decision by the D.C. Circuit to hear Halbig en banc will likely trigger more attempts at delay by the government. They would argue, as they did in their application for an extension, that a final determination in Halbig is needed before the Court can decide whether or not to take King for oral argument. It’s possible the justices would agree, since the Court frequently declines to consider issues that have not created a split in the lower courts.  But, as I have argued, King addresses an issue significant enough that the Court should take it even if Halbig is reversed. Uncertainty about the availability of subsidies in 36 states is not only terribly unsettling to the health-care industry, but affects millions of Americans who must make health-care decisions without knowing what their premiums really will be going forward. And there are other cases working their way through the courts which are expected to find the IRS rule at issue unlawful, just as Halbig did, so it seems likely the case will be decided by the High Court eventually.

The IRS’s attempt to rewrite Obamacare itself is yet another example of the disregard for the rule of law that has become the hallmark of this administration, prompting the Court to take an unusually strong stand against its extreme legal positions in a number of cases. This case provides another opportunity for the Court to embrace its role as the defender of our constitutional checks and balances.

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

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