In a separate challenge also decided Tuesday, a three judge panel on the Fourth Circuit Court of Appeals unanimously upheld the IRS rule allowing subsidies in federal exchanges. Federal Judge Roger Gregory wrote that the challengers could not "rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear."
Following up on an earlier item, Republican-appointed judges on the D.C. Circuit have taken a step towards gutting the Affordable Care Act, ruling that consumers that received coverage through the federal exchange marketplace can't receive subsidies. In a 2-1 ruling, a pair of conservative jurists said there was ambiguity in the language of the law, which they chose to exploit to push "Obamacare" towards catastrophic failure.
And in an interesting twist, while many of us were still reading the decision, the 4th Circuit announced the opposite ruling.
We're starting to see a pattern here. Two federal district courts rejected the lawsuits as ridiculous. A unanimous ruling from the 4th Circuit rejected the lawsuit as ridiculous. And yet, this morning two Republican-appointed activist judges said they have no choice but interpret a possible drafting error in the most foolish way possible.
Does the split between two appeals courts all but guarantee that the Supreme Court will hear the case? Not necessarily. The next step will be an appeal of today's D.C. Circuit ruling to the full appeals court bench, which seems likely to overturn this morning's decision.
At that point, if it happens, there will two district courts and two appellate courts all ruling the same way: trying to destroy the American health care system based on cherry-picking an ambiguous phrase in a massive statute is ridiculous.
If the process plays out this way, and chances are pretty good that it will, the Supreme Court may take up the case anyway, but at that point, there wouldn't be any reason to.