In what could be a spot of good news for the Obama administration, the full U.S. Court of Appeals for the D.C. Circuit has agreed to hear a challenge to the Patient Protection and Affordable Care Act.
The 11-member appellate court is now stacked with a majority of Democratic appointees, including four** named by President Barack Obama. The other judges include three from the Clinton administration, three from the George W. Bush administration and one from the George H.W. Bush administration.
In addition to the 11 active judges, two senior judges who heard the case originally -- one Republican appointee, and one Democratic appointee -- will join the en banc panel, giving it a total roster of 13.
The high-stakes, en banc hearing set for Dec. 17 will give the full court a chance to reconsider, and potentially reverse, an earlier decision by a three-judge panel.
In July, on the same day, the D.C.-based appellate panel and another appellate panel came to different conclusions on a similar challenge. If this split in appellate circuits remains, the Supreme Court is more likely to take up the case -- for the Obama administration, a dicey proposition. On the other hand, if the full D.C.-based court upholds the law, there’s no split for the Supreme Court to resolve.
“Opponents of the ACA have been desperate in moving to get this case before the Supreme Court, and with today’s ruling from the D.C. Circuit – and in the absence of any future split between the circuit courts – it is possible it will never get there,” Constitutional Accountability Center Chief Counsel Elizabeth Wydra said in a statement.
The divided D.C. three-judge panel concluded in the case, Halbig v. Burwell, that the Obama administration stretched the 2010 health care law too far in extending the subsidies through the federal HealthCare.gov website.
“We reach this conclusion, frankly, with reluctance,” Judge Thomas Griffith wrote in the 2-1 decision. “Our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal exchanges and for health insurance markets more broadly.
Later that same day, the Richmond, Va.-based 4th U.S. Circuit Court of Appeals reached the opposite conclusion about the same set of facts. In a unanimous decision, the three-judge 4th Circuit panel called extension of the health insurance tax credits a “permissible exercise” of a federal agency’s discretion in interpreting ambiguous legislative language.
** The original version of this posted incorrectly reported there were three Obama appointees.