Jul 22, 2014

Posted in Uncategorized

Counting Votes in Halbig and King

While the D.C. Circuit invalidated the rule by a 2-1 vote, a unanimous 4th Circuit panel upheld the rule, the votes were more complicated.

Judges Edwards (CADC) and Davis (CA4)  found the tax credits unambiguously apply to the federal exchange.
Judges Gregory and Thacker (CA4) found the statute ambiguous, and through Chevron step 2, deferred to the IRS.
Judges Griffith and Randolph (CADC) found that the statute unambiguously blocks the tax credits for the federal exchanges.
In a bit of a flashback, Judge Davis was on the CA4 panel that decided Liberty University v. Geithner. He was the only judge who reached the commerce clause issue and found the ACA’s mandate. constitutional on those grounds. Likewise, Judge Edwards was on the D.C. Circuit panel that unanimously upheld the ACA’s mandate.
This is going to be fun with competing cert petitions an en banc petitions. Even if the SG files a petition for rehearing en banc, and opposes the 4th Circuit cert petition, I suspect there are 4 votes on the Court (the NFIB dissenters) who would want to grant cert, before this issue fully percolates.

Update: On a closer read, even Judge Edwards thought the statute was ambiguous, so he should be lumped in with Judges Gregory and Thacker. So 5 out of 6 judges agreed the statute is ambiguous, and does not clearly provide for the tax credits. Three judges had to rely on the uber-deferential Chevron Step 2 to resolve the issue.

Print Friendly
  • Griff

    This seems like one of those cases that would drive a reasonable layperson crazy. Six appellate judges have looked at the same statute; two think it definitely says one thing, two think it definitely says another thing, and two say it could mean either one. Isn’t that the very definition of “ambiguous”?

  • Jonathan

    I think Edwards said the statute was ambiguous.

    • DjDiverDan

      If the best argument for ambiguity is “I do not like how things work out if I follow the text literally,” that is not a good sign for the IRS.

  • Jonathan

    Ambiguity is a conclusion about the results of textual interpretation analysis, not a description of the disagreement about how to apply it. The fact that several judges disagree doesn’t mean that they all applied the relevant precedent properly.

  • Pingback: Obamacare Deja Vu: Frivolous Arguments Now On The Wall, and Parade of Horribles | Josh Blackman's Blog()

  • Pingback: Greenhouse: The “Failed Commerce Clause attack” On Obamacare. Failed? | Josh Blackman's Blog()