The group seeking to invalidate the Affordable Care Act’s subsidies to Americans purchasing health insurance through federally run state marketplaces is asking the Supreme Court to take up the case early.
The Competitive Enterprise Institute, the conservative group funding challenges to the IRS rule allowing subsidies to flow to state exchanges, announced Thursday that it was asking the Supreme Court to intervene.
The challengers argue that the Affordable Care Act only allows subsidies in exchanges set up by states — an interpretation that could lead to millions of people being unable to afford coverage. Owing largely to Republican resistance, only 14 states have set up their own exchanges. The federal government runs the remaining 36.
Two federal courts split on the question last week, with a three-judge panel on the U.S. Court of Appeals for the Fourth Circuit upholding the rule, and a separate three-judge panel on the U.S. Court of Appeals for the D.C. Circuit striking it down.
That split may not last long, however, which may be one reason why the challengers are asking the Supreme Court to take the case. The Supreme Court is more likely to take cases if there are two contradictory decisions by federal appeals courts — what’s known as a “circuit split.”
The Obama administration has said it will seek review of the D.C. Circuit decision by the full slate of judges, known as an “en banc” hearing. If that happens, the previous decision will technically be wiped out, and there will be no more circuit split.
Some legal experts believe the full panel to be more sympathetic to the Obama administration, because the majority of judges are now Democratic appointees, thanks to Senate Democrats abolishing the filibuster for judicial nominations.
Adam Serwer