While much ado was being made of the Supreme Court’s Hobby Lobby decision, another case that could be the death knell for Obamacare flew below the radar – that is, until the D.C. Circuit ruled against the Obama administration. Then, everyone was all ears. That’s because the court’s decision – if adopted by other circuits – could mean the end of the Affordable Care Act as we know it.

But you didn’t think the Obama administration would stop there, did you? Last Friday, the administration filed a petition for rehearing en banc. Let’s explore whether the D.C. Circuit will grant the petition.

Halbig Background

Last month, in a 2-1 decision, the D.C. Circuit “held that the Internal Revenue Service regulation authorizing tax credits in federal exchanges was invalid,” according to The Volokh Conspiracy.

Petition for Rehearing

As we noted in an earlier post, the Fourth Circuit’s decision to the contrary delivered an “instant circuit split” that may be enough to get before the Supreme Court. But, it looks the Obama administration is not skipping any steps, and instead of petitioning for certiorari, filed a petition for a hearing en banc.

Will the Petition Be Granted?

Good question. The answer depends on whom you ask. Clearly if you ask the Obama administration, the answer should be yes. But just because you don’t like a decision doesn’t mean a rehearing should be granted.

On the other hand, if you ask Emily Bazelon of Slate, she thinks the political affiliations of the judges, based on who appointed them, will mean victory for the Obama administration. Noting that the full D.C. Circuit bench consists of seven Democratic appointees and four Republican appointees, she states, “Presto: Harry Edwards’ dissent today can be a winner tomorrow.”

Related Resources:

  • D.C. Circuit Panel Skeptical of IRS in Obamacare Subsidy Lawsuit (FindLaw’s D.C. Circuit Blog)
  • Obamacare Tax Credit Lawsuit Struck Down by D.C. District Court (FindLaw’s D.C. Circuit Blog)
  • Priests’ Obamacare Contraception Mandate Appeal Heard (FindLaw’s D.C. Circuit Blog)
  • 4th Circuit Says Nah, D.C. Circuit. ACA Subsidies For All! (FindLaw’s U.S. Fourth Circuit Blog)

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