Friday, August 01, 2014

Halbig, King, and the Procedural Path Ahead

Neil Siegel

Forgive me if this is too obvious, but I fear it may not be to everyone interested in whether tax subsidies will be available in federally facilitated exchanges.

The reason the plaintiffs in King are petitioning for certiorari now is that they realize their argument has little chance of prevailing before an en banc Fourth Circuit or an en banc DC Circuit. The reason is not that there is so much uncertainty and exigency that the Supreme Court’s review is genuinely required at this time. Indeed, there will be no circuit split for the Supreme Court to resolve if (as seems very likely) the DC Circuit in Halbig (1) grants the federal government’s petition for rehearing en banc, (2) vacates the panel majority’s decision, and (3) affirms the judgment of the district court upholding the IRS regulation that makes subsidies available in federally run exchanges.

If the Justices take King, it will be because they want to take King notwithstanding the absence of a circuit split. If the Justices follow their ordinary procedure of resolving circuit splits under Rule 10, they will sit on the petition for certiorari in King until the Halbig litigation is resolved—and then deny the petition.

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