Yes, Halbig should be taken en banc

Now that the government has asked the full D.C. Circuit to rehear Halbig, some commentators have suggested that it’s an inappropriate candidate for en banc review. A Wall Street Journal op-ed from a lawyer representing a right-wing health-care think tank, for example, says that en banc review ought to be reserved for “cases raising serious constitutional issues.” Halbig, though, is just a “straightforward statutory interpretation case.”

This is wrong for so, so many reasons. Under the Federal Rules of Appellate Procedure, a case can be taken en banc if it involves “a question of exceptional importance.” The rule does not say “a constitutional question of exceptional importance.” No judge, to my knowledge, has ever suggested that the rule be read so narrowly.

To the contrary, the rules are drafted in open-ended terms—“exceptional importance”—because cases differ in their importance along many different dimensions. Some cases are trivial in themselves but present novel legal questions that will affect hundreds of other cases. Others are of “exceptional importance” because they implicate questions of faith or principle.

Others still may be exceptionally important purely because of their effects on actual people. As D.C. Circuit Judge Doug Ginsburg said in an article on the court’s en banc practice, “[a] case may be of exceptional importance to the public if it concerns … a unique issue of great moment to the community.”

If any case meets that standard, Halbig does. The case jeopardizes tax credits that millions of people would otherwise have used to purchase health insurance. The best estimate I’ve seen is that Halbig, if sustained, could swell the ranks of the uninsured by 6.5 million people. Every one of those people is just an accident or cancer diagnosis away from financial catastrophe.

Who cares if the case is “just” about statutory interpretation? Does anyone think that a court decision depriving old people in two-thirds of the states of their Social Security benefits wouldn’t be of “exceptional importance”? What about a case that kicked disabled people off of Medicare because they happened to live in states with Republican legislatures? Come on.

Strategically, I understand why the Halbig challengers don’t want the case taken en banc. Preserving the current circuit split makes it more likely that the Supreme Court will take the Fourth Circuit case. And if you think the panel got it right in Halbig, you might reasonably think there’s no need to rehear the case.

But if you believe the panel made a catastrophic mistake out of misplaced fidelity to a controversial mode of statutory construction, Halbig practically cries out for en banc review.


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