This won't surprise anyone who's been following Obamacare's latest legal battle, but the case just got one step closer to the US Supreme Court. Again.
The most recent legal challenge centers on the subsidies available to people newly insured on state insurance exchanges. The plaintiffs argue that, based on the plain text of the law, Congress only authorized subsidies for state-established exchanges and that subsidies shouldn't be available in the 36 states with federal exchanges. The federal government vehemently disagrees.
The plaintiffs in King v. Burwell, the case that was decided by the Fourth Circuit earlier this month, have asked the Supreme Court to hear their case, CNBC reports. The Fourth Circuit ruling went in favor of the government; the unanimous opinion said that subsidies should be available to residents of all states, based on their best reading of the law.
It's not clear whether the high court will take up the case. Four justices have to agree to hear it, and they may wish to wait until Halbig v. Burwell, a related case, has fully played out.
Unlike King, the government lost in Halbig. There, the three-person panel of DC Circuit judges held that subsidies are illegal in the 36 states where the federal government runs health insurance exchanges. But the government plans to ask the entire DC Circuit — eleven judges in total — to review the decision "en banc". Because the full DC Circuit skews liberal, observers expect that the Halbig decision will be reversed during en banc review. That probably won't happen until early fall.
The King plaintiffs decided to skip an en banc petition.
By skipping an en banc petition, the King plaintiffs hope to get the Supreme Court to hear their case this term.— Nicholas Bagley (@nicholas_bagley) July 31, 2014
The justices may wish to wait until Halbig's en banc review has been resolved before taking up one of the subsidy challenges. If they wait, that could push the timeline on a Supreme Court hearing back by a full year.
Alternatively, the Supreme Court could decide not to hear any of these challenges.
"We think that the Fourth Circuit's unanimous panel made the right decision, agreeing with Congress and common sense," said a senior White House official. "As we have previously said, the government is following the normal process and seeking a full review of 2-1 decision in the Halbig case. If the en banc DC Circuit rules in favor of the government, there will be no split in the courts of appeals and no need for Supreme Court review. This litigation should be seen for what it is — another partisan attempt to undermine the Affordable Care Act."
The Court will decide sometime this fall whether or not to hear King. If they do decide to hear the case, oral arguments would happen this winter and a final ruling would be expected sometime next spring.