Margot Sanger-Katz reviews the possibilities. The one that is getting the most attention:
All the judges on the D.C. Circuit could decide the Halbig v. Burwell case. There is a process called “en banc” review in which the case would be reargued before all of the 11 judges on the D.C. Circuit Court, and the Obama administration has said it will ask the court for such a review. A majority of the judges would have to agree to rehear the case for it to be reconsidered in this way. Appellate courts rarely accept cases for en banc review, but this is a big one. Many legal experts think that the full court would view the government’s position more favorably than the two judges who ruled against them in the original decision on Tuesday; legal questions don’t necessarily break down along political lines, but Democratic appointees outnumber Republican appointees on the court and include four new judges recently appointed by President Obama.
Danny Vinik thanks Reid for having deployed the nuclear option:
Here’s where the Democrats’ use of the nuclear option is important. The D.C. Circuit has 11 judges on it, seven Democratic appointees and four Republican ones. The only reason Democrats have a majority is due to the nuclear option.
As University of Michigan law professor Nicholas Bagley explains at The Incidental Economist, the D.C. Circuit will likely review the decision and vacate Tuesday’s ruling—all because of those extra three judges.
“There’s no doubt that having a court with more members appointed from the left will end up having real consequences for the en banc decision, in terms of whether they take the case and the eventual outcome,” Bagley told me. If the full D.C. Circuit does overturn the ruling today, the appellants could appeal to the Supreme Court. Given the prominence of the case, that might just happen—in which case, the nuclear option doesn’t matter. But it is not guaranteed.
Tom Goldstein looks at when SCOTUS might hear the case:
For the case to be heard in the Court’s upcoming term, a petition for review would have to be filed by early November. The challengers could easily meet that schedule by appealing the case they lost in the Fourth Circuit. But the Justices may wait to step in until the D.C. Circuit is completely done with its case, which could take an extra six months. If so, then a decision would have to wait another year. Time is probably on the administration’s side, because as a practical matter the courts will be less and less likely to strike down the subsidies as more and more Americans get the benefit of them to buy health insurance.
Cassidy seriously doubts SCOTUS will kill the ACA:
In June, 2012, you will recall, the high court, in a five-to-four decision, ruled constitutional the A.C.A. provision mandating that individuals purchase insurance, on the grounds that the mandate was a tax, which Congress has the right to impose. As many commentators, myself included, remarked at the time, this innovative and largely unexpected maneuver looked like a political one. In the power to tax, Roberts, who wrote the majority opinion, found a way to avoid unleashing the enormous political storm that would doubtless have followed the Court’s decision to overturn President Obama’s signature reform, one he had campaigned on in 2008, and which took more than two years of haggling and debate to become law. Two years on—considerably more by the time this case would reach the Supremes—I very much doubt that the Chief Justice will have discovered the urge to strike down the Affordable Care Act.
But Trende warns against underestimating Halbig:
I think commentators are hanging far too much on the fact that the Supreme Court wouldn’t strike down the subsidies because of its ruling in the 2012 case. Let’s remember first that the court, before Chief Justice Roberts changed his vote, was apparently poised to strike down the ACA in its entirety — something that even observers on the right doubted it would do. Justice Kennedy, whom many expected to be the swing vote, was on board for full repeal to the end.
The Dish 