Will the Supreme Court grant King v. Burwell?

Less than a week after their loss in the Fourth Circuit, the plaintiffs in King v. Burwell have asked the Supreme Court to hear their case. The plaintiffs’ petition reflects a deliberate effort to have the Court hear the case this upcoming term:

The reasons for granting the petition are simple and compelling. Two federal Circuits have divided over whether the IRS has authority to spend tens of billions of dollars per year to subsidize health coverage in 36 states. If the ACA means what it says, as the D.C. Circuit held, the consequences are profound: It means millions of people are ineligible for subsidies and exempt from the ACA’s individual mandate penalty. It means hundreds of thousands of employers are free of the Act’s employer mandate. It means a fundamental change in the health insurance market in two-thirds of the country. And it means that the IRS is illegally spending billions of taxpayer dollars every month without congressional authority. Uncertainty over this issue is simply not tenable. That is why each Circuit expedited its proceedings, and it is why this Court should grant review now and resolve the matter this Term, regardless of whether the D.C. Circuit grants en banc review of Halbig.

If the Court grants review, we’ll get a decision by next June at the latest, and quite possibly sooner.

Will the Supreme Court take the case? The current, ephemeral split in the circuits isn’t a good reason to grant review. As the plaintiffs tacitly acknowledge, the D.C. Circuit is likely to take Halbig en banc and rule in favor of the government. That would eliminate, at least for now, any “[u]ncertainty over this issue.” The Supreme Court is usually happy to let the circuit courts clean up their own messes.

That’s why the petitioners harp on the “profound” consequences of the D.C. Circuit’s decision. But those consequences—consequences that the plaintiffs seem to think are devoutly to be wished for—matter only if you think the Fourth Circuit got this case wrong. Otherwise, what follows from the D.C. Circuit’s decision is just the dramatic fallout of a gigantic mistake.

That underscores, in turn, that the plaintiffs are straight-up asking the Supreme Court to correct an error. Error correction is not typically the Court’s role. But it only takes four justices to take a case, and it’s not hard to tell a story about how four justices could be persuaded both that the Fourth Circuit’s decision is wrong and that this is one of those rare cases of such public importance that prompt involvement is necessary.

Remember, too, that four justices dissented in NFIB v. Sebelius. Perhaps the dissenters’ apparent hostility to the ACA—remember, they wanted to strike down not just the individual mandate, but the statute in its entirety—explains why the plaintiffs have built their petition around what reads as a paean to a world without the ACA.


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