In it, but not of it. TPM DC
A three-judge panel on the D.C. Circuit invalidated the federal exchange subsidies in June. The full court subsequently vacated the ruling and announced it'll re-hear the case, called Halbig v. Burwell.
The conservative opponents have a tough battle because the en banc ruling will feature 8 Democratic-appointed judges — four of whom were appointed by President Obama himself — and 5 Republican-appointed judges.
Michael Carvin, the lawyer for the plaintiffs, has appealed directly to the Supreme Court, where the case will be heard if four justices vote to take it. He expects the justices to view an expected D.C. Circuit ruling in favor of the law as corrupted by politics and agree to review it.
"I don't know that four justices, who are needed to [take the case] here, are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think," Carvin told TPM on Thursday, after a Heritage Foundation event previewing the upcoming Supreme Court term. "This is a hugely important case."
Two federal trial court judges and one appeals court have upheld the law against the challenge, which alleges that the Obamacare statute prohibits subsidies to be provided on the federal exchange for residents of 36 states. The Supreme Court is generally less likely to take cases if the lower courts are in agreement. Proponents of Obamacare view the Halbig lawsuit as a partisan quest aimed at gutting the law.
"There's plenty of cases where [Supreme Court justices] take important issues even if there's no circuit split — like the gay marriage cases, they might take those," Carvin said. "If you've gone through that process and you don't really care what [the Obama-appointed judges] think — because I'm not going to lose any Republican-appointed judges' votes on the en banc — then I think the calculus would be, well let's take it now and get it resolved."
And if the case reaches the Supreme Court, Carvin expects all five Republican-appointed justices to rule that the federal exchange subsidies are invalid.
Asked if he believes he'd lose the votes of any of the five conservative justices, he smiled and said, "Oh, I don't think so."