Thursday, August 07, 2014

En Bunk: A Response to Professor Adler on En Banc Review of the ACA

Guest Blogger

Rob Weiner

On July 22, in Halbig v. Burwell, a panel of the D.C. Circuit ruled 2-1 that low income families cannot get the tax subsidies the Affordable Care Act granted to enable them to afford health insurance, if their states opted to have the federal rather than the state government set up health insurance exchanges.  Within hours, in King v. Burwell, a unanimous panel of the Fourth Circuit held just the opposite, that subsidies are available on all exchanges established under the Act.  (I filed amicus briefs on behalf of Families USA in both cases.) 

In making its ruling, the D.C. Circuit panel simultaneously issued an order on its own initiative making clear that its judgment was not effective until the full Court of Appeals decided whether to reconsider the case.  The panel perhaps recognized that the other judges on the Court might view the decision as out of step with the Circuit’s precedents.  A decision by the en banc Court to reconsider will automatically vacate the panel opinion.  If the majority of the Court then concludes that the panel decision was wrong, they will issue an opinion reflecting the correct result.

In arguing against en banc review in a Volokh Conspiracy post on August 5, Professor Jonathan Adler quotes with evident approval a 17-year old disquisition by Judge Harry Edwards, the dissenter in Halbig, regarding the standards for en banc review.  The temptation of scoring a “gotcha” against Judge Edwards appears to have displaced reasoned analysis to whether those views make sense in this case.  For example, Professor Adler commends Judge Edwards’ 1987 view regarding the limited value of having the entire D.C. Circuit reconsider en banc the 2-1 vote of the three-judge panel.  A vote of 6 out of 11 judges, it is claimed, has no greater “legal validity” than a vote of 2 out of 3.  If the implication is that any panel decision is as likely as an en banc ruling to be correct, then it was overbroad in 1987, and it is particularly fallacious here.  Human fallibility being what it is, judges sometimes get an answer wildly wrong.  As a matter of probability and logic, 6 judges are less likely to go off the deep end than 2. 

Whatever the merits of Judge Edwards’ views regarding en banc consideration in 1987, where the Court of Appeals had first granted and then vacated four en banc orders, and where the number of en bancs was increasing, those views are inapt in the context of this case and this era.  In the current hyper-partisan environment, the argument that majority rule has scant value in the context of judicial review echoes a general disdain for majority rule -- particularly when it comes to the Affordable Care Act – which was not prevalent in 1987.  The Halbig case is a prime example.  Its essential thrust is to overturn the will of the majority reflected in the votes of our elected representatives in Congress and the White House.  As Professor Michael Greve recently acknowledged, the statutory language supposedly commanding denial of subsidies to poor people was only “discover[ed]” months after the ACA had become law.  Back then, Professor Adler and his co-author Michael Cannon touted that discovery as a statutory “glitch” and a “surprise,” not a clarion declaration of Congress’s intent.  Cannon gleefully announced that this new finding would “gut” the Affordable Care Act.  Only later did the advocates seek to improvise an argument that Congress deliberately sought this self-destructive result, even though Congress explicitly stated its contrary intent in the statute -- to extend affordable health insurance to everyone, not to deny it.  Resort to judicial fiat to “gut” a duly enacted statute and to defeat the expressly stated intent of Congress is antidemocratic and illegitimate.  It justifies remedial action by the full Court.

In this context, Professor Adler’s revival of the argument that the full Court of Appeals should not reconsider the vote by a minority of judges to gut the legislation enacted by a majority of Congress would be ironic if the machinations behind it were not so transparent.  In clamoring for the Supreme Court to grant review in the Fourth Circuit case, which allowed subsidies under the ACA, the opponents of the ACA contend that the case is critically important.  At the same time, Professor Adler maintains that the D.C. Circuit ruling in Halbig, denying subsidies to low-income families, does not merit en banc review because the case is not important.
Professor Adler amps up the irony even further in citing Judge Edwards’ concern from 1987 that en banc review can induce “politicking” among the Judges on the Court.  Whatever the validity of those worries when Judge Edwards voiced them, concerns about politicizing the judicial process lack credibility now coming from those who have wielded litigation as an instrument of ideological and political warfare.  In any event, there is no reason to believe the en banc Court will be more susceptible to politics than any panel of the Court is, or was.
 Ultimately, Adler’s point boils down to the argument that the D.C. Circuit has rarely granted en banc review.  But so what?  That says nothing about whether this case is so important, or so inconsistent with Circuit precedent, or so inimical to the proper exercise of judicial review, as to warrant reconsideration.  Even if, in the usual case, the flawed nature of a decision is insufficient by itself to warrant en banc review, some decisions are so aberrant and their impact is so significant that it would be unusual and surprising if the Court did not grant review.  Halbig is such a case. 

Further, Professor Adler does not get around to dismissing until late in his post perhaps the most common reason for en banc review, that the panel opinion creates a split in the Circuits.  The Supreme Court often grants certiorari to resolve such splits, because it is neither good law nor good policy for the decision of a federal question to depend on the venue of the court deciding it.  If by granting en banc review, the D.C. Circuit ends such geographic roulette in this case, that is a good result, and it spares the Supreme Court the trouble of taking the case just to police consistency.   
In sum, Professor Adler’s arguments against en banc review of the panel decision in Halbig are wrong.  The full Court of Appeals should hear this case, extinguish the conflict between the Circuits, turn back the politicized effort to enlist the Judiciary in thwarting the Affordable Care Act, and preserve the subsidies that Congress granted to millions of low income families.  

Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. You can reach him by e-mail at robert.weiner at  

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