Ever since three-judge panels on the Fourth Circuit and the D.C. Circuit issued conflicting rulings in July on the availability of tax credits under the Affordable Care Act (ACA), the opponents of the law have been trying to rush their case to the Supreme Court.  That’s where they apparently think they have their best shot at succeeding in what D.C. Circuit Judge Harry Edwards called their “not-so-veiled attempt to gut” the law.  But thanks to an Order just issued by the full D.C. Circuit, their chances of getting the case in front of the Supremes just got a lot lower.

The two cases involved are just the latest salvo in the ACA opponents’ continuing efforts to kill the ACA by any means possible.  In these challenges, the opponents of the law argue that the ACA, which was enacted to make health insurance affordable for all Americans, doesn’t permit people to receive the tax credits that actually make it affordable if they purchase their insurance in one of the 36 states that have opted to let the federal government run their Exchange.  Thus, they argue, an IRS rule confirming that tax credits are available to all qualifying Americans, regardless of where they live, is invalid under the statute. 

It’s an argument that shouldn’t hold water in any court.  The opponents of the law rest their argument on one four word phrase—“established by the State”—but ignore the text of the rest of the 900-some page statute that makes it clear that federally-facilitated Exchanges are functionally the same as state-established Exchanges.  Even Justice Scalia should recognize that’s no way to interpret a statute.  As he explained just last year, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”  Here, reading the words of the statute in context makes clear that tax credits should be available to all qualifying Americans.  Fourth Circuit Judge Andre Davis called the argument made by the law’s opponents “tortured” and “nonsensical.” 

But it was just two years ago that opponents of the ACA almost prevailed at the Supreme Court with an argument that many thought was off-the-wall a short time before.  So it’s no wonder that the law’s opponents think that the Supreme Court offers their best shot at a victory.  Indeed, they’re so eager to get there that they filed their request for the Supreme Court to hear the Fourth Circuit case in which they lost (King v. Burwell) less than ten days after the Fourth Circuit ruled for the government.  And they preemptively urged the Court not to grant the government an extension of time to file its response to their request before the government even sought one.  The Court granted the government’s request anyway, as is its normal practice. 

The ACA’s opponents also repeatedly argued that the full D.C. Circuit shouldn’t rehear the case in which they won (Halbig v. Burwell), even though the federal appellate rules make clear that Halbig is exactly the type of case in which en banc review is appropriate.  Oddly, these purported textualists ignored the text of the governing rule entirely in their response to the government’s en banc request.  Fortunately, the judges on the D.C. Circuit didn’t, and they issued an order granting en banc review and setting the case down for argument before the whole court in December.  That order also vacated the judgment previously issued in the case. 

What does this mean for the opponents’ request that the Supreme Court hear King?  It makes it a lot less likely that the Court will grant it.  The Supreme Court receives thousands of requests to hear cases each year, but grants only 70-80.  The most important consideration when the Court is deciding which cases to hear is whether there’s division among the lower courts (what Supreme Court watchers call a “circuit split”).  Now that the D.C. Circuit has vacated the judgment in Halbig, there’s no circuit split, and if the Supreme Court follows its normal practice, there’s little question about what it will do with the cert. petition in King.  It will either deny it outright or wait to rule on it until the full D.C. Circuit issues a new decision, probably sometime next year.  At that point, if the full D.C. Circuit agrees with the Fourth Circuit, there will be no circuit split, and the Supreme Court would most likely deny the petition in King.

The ACA’s opponents continue to argue that Supreme Court review is inevitable, but their arguments about that are as weak as their arguments about the law itself.  They claim that “[t]he same factor that made Halbig a candidate for en banc rehearing—its ‘exceptional importance’—makes it an equally likely candidate for Supreme Court review.’  But they again ignore the text of the relevant rule: Halbig was of “exceptional importance” because it created a split with another circuit.  If the full D.C. Circuit ultimately rules as the Fourth Circuit did (as it certainly might), there will no longer be a split.  The ACA opponents also argue that other cases in the lower courts “could contribute to a circuit split.”  They could, but they could very well not.  After all, six of the eight judges who have heard these challenges so far have all agreed that the text, purpose, and history of the ACA make clear that tax credits and subsidies should be available to all qualifying Americans, regardless of where they live.  In any event, in an ordinary case, the Supreme Court would wait to see if a split actually developed before taking the case.

So while the ACA’s opponents may be eager to get another chance to try to take down the law at the Supreme Court, their odds of getting there just got a lot lower.

Cross posted on Huffington Post.