The D.C. Circuit's decision got basically everything wrong. It misunderstood the text, structure and purpose of the Affordable Care Act. The Justice Department has already indicated that it will ask the entire D.C. Circuit to review the Halbig v. Burwell decision, and when it does, it will no doubt reverse it.
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Elizabeth Wydra of the Constitutional Accountability Center counters, "The argument frankly is made up out of whole cloth in an attempt to get rid of a law that political opponents do not like." No one, she says, "not the people who wrote the law in Congress, frankly not even the people who opposed it at the time it was enacted — no one understood the law" to forbid subsidies when the federal government, "acting in the shoes of the state," runs the exchange.
The Obama administration has said it will appeal the D.C. Circuit’s ruling to the full panel, which – thanks to Senate Democrats abolishing the filibuster – no longer has a Republican-appointed majority. But if the ruling were upheld, “It would certainly throw the Affordable Care Act, which has really started to hit its stride, into turmoil again,” said Doug Kendall, head of the liberal Constitutional Accountability Center.
Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, says the second ruling got it right, adding, "The available tax credits are essential to filling the Affordable Care Act's primary goals of assuring widespread coverage in the health care market and that Congress was fully aware of this when drafting the bill."
The 2-1 ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which will be appealed by the government, threatens the framework of the health care system for about 5 million Americans without employer-provided health plans. Just two hours after that ruling, a separate federal appeals court panel in Richmond unanimously upheld the law and its system of subsidies and tax credits, putting it in opposition to the D.C. appeals court.