King v. Burwell [Cert] and Halbig v. Burwell) arrived at the DC COA in hopes of defunding (Ted Cruz’s top priority dream) the PPACA. Initially, a 3 judge panel ruled 2-1 striking down the funding of the PPACA based upon an earlier IRS interpretation of PPACA Section 1311 stating “Exchanges established by States.”
Section 36B of the Internal Revenue Code, which was enacted as part of the Patient Protection and Affordable Care Act (“ACA”), authorizes federal tax credit subsidies for health insurance coverage that is purchased through an “Exchange established by the State under section 1311” of the ACA.
The Obama administration asked the DC COA “to consider en banc the legality of subsidies being given to consumers to help them afford health care insurance, if they shop for it at a federal marketplace (“exchange”).” 11 judges voted in favor of hearing the case en blanc (I can only guess who voted no). It is just a guess; but when 11 judges vote yes to hear a case, the likelihood of the decision is usually favorable. In this case, it would be in favor of the PPACA.
By granting a hearing in front of the entire DC COA, the court wiped out the three panel judge earlier decision “finding that such subsidies under the Affordable Care Act can only be provided to those who seek insurance on an exchange directly operated by a state government — a potentially crippling blow to the new law.” Only 16 of the 34 initial exchanges were established by states and the rest by the federal govenment. If this decision was allowed to stand and taking into consideration another district’s (4th District COA) decision favoring the PPACA, SCOTUS could take the case as district courts are in conflict. As it is, SCOTUS could still take the case amongst the 85 (sigh) it hears yearly.
December 17, 2014 is the date of hearing and little allowance has been made for continuance as warned.