Paul Krugman, the New York Times columnist and Nobel Laureate, may have read my new book. In an interview with Business Insider, Krugman contended that the Affordable Care Act–which he compared to a “Rube Goldberg device” that was “done on the cheap” “for political reasons”–is “troubled.” Then he offered this commentary:

“So it’s a little threadbare and we’re possibly seeing it start to unravel at least in, not in all of the country, but in parts of the country.”

I couldn’t have put it better myself!

 

Unraveled will be officially released on Tuesday, September 27, 2016. I have a number of promotional events this week:

First, On Tuesday at 2:00 pm – Nick Bagley will be moderating a discussion about Unraveled on a Federalist Society Teleforum.

Second, on 9/27 at 6:00 p.m. the Georgetown University Federalist Society Chapter will host a panel discussion on “Supreme Court Advocacy in the Obamacare Cases.”  Rather than focusing on the merits of the King v. Burwell and Hobby Lobby/Zubik, we will bring together the lawyers who litigated the cases to provide an inside perspective on the advocacy. Mike Carvin (Jones Day) will relate his experiences from King/Halbig, and Erin Murphy (Bancroft/Kirkland) will discuss the contraceptive mandate cases. Marty Lederman will offer some comments on theses cases. Adam Liptak of the New York Times will moderate. The event is open to the public, and you can RSVP on their Facebook page.

Second, on 9/28 at 12:00 p.m., the Cato Institute will host a book forum for Unraveled. I will be joined by my partner-in-crime, Ilya Shapiro, Robert Barnes (Washington Post), and Phillip A. Klein of the Washington Examiner. The event is free, but please register in advance.

Third, at 9/28 at 7:00 p.m. (after a quick ride on the Northeast Corridor), I will be speaking to the New Jersey Federalist Society Chapter in Morristown. You can register here.

Fourth, on 9/29 at 12:00 p.m., I will be speaking to the Columbia Federalist Society Chapter. Professor Kristen Underhill will graciously provide comments. The event is open to the public in Room 102A.

Fifth, on 9/29 at 4:00 p.m., I will be speaking to the NYU Federalist Society Chapter. The event is open to the public in Furman Hall, Room 214. With a brief reprieve from Obamacare (only in part), I will be discussing how the 9th Justice will impact the Court’s jurisprudence in 2017 and beyond. Prof. Samuel Estreicher will be joining me in the discussion.

Cross-Posted at Volokh Conspiracy.

In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. Judge Rosemary Collyer ruled that the House as an institution had standing, and that the payments were made without an appropriation. Currently, the case is on appeal to the D.C. Circuit. While the litigation has had an unexpected success in the courts, its origin was rocky. As I discuss in Chapter 23 of Unraveled, one of the most difficult aspects the case was finding an attorney to take it–or more precisely, an attorney whose law firm would allow him keep the case.

In 2014, David Rivkin of the Baker Hostetler law firm and Florida International University Law Professor Elizabeth Price Foley wrote a series of articles, sketching a theory of why the House of Representatives would have standing to challenge the President’s implementation of the Affordable Care Act. At the time, their writings focused on the White House’s delay of the employer mandate. Behind the scenes, Rivkin, Foley, and their colleagues at Baker were advising the House of Representatives on how to take legal action.

With their counsel, on June 25, 2014, Speaker John Boehner circulated a memorandum to the House GOP caucus. The Ohioan wrote that “for the integrity of our laws and the sake of our country’s future, the House must act now” to stop the president’s illegal executive actions. In July, Boehner would bring legislation to the floor to authorize the House General Counsel “to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country.” On July 30, the House voted along straight party lines – 225 to 201 – to authorize the litigation. (One Republican voted nay.) House Resolution 676 was framed very broadly: the lawsuit could “seek any appropriate relief regarding the failure” of all executive-branch officials – including the president himself – “to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation” of the ACA.

After the House authorized the suit, David Rivkin and Baker Hostetler signed a contract to litigate the case, which was capped at $350,000. The reaction from Democrats was swift. The White House called the suit “unfortunate.” Minority Leader Nancy Pelosi criticized the case as a waste of “time and taxpayer dollars.” Representative Louise M. Slaughter (D-NY) called the suit a “sorry spectacle of legislative malpractice” and “political theater.” Even many conservatives critiqued the decision. Talk Radio Host Mark Levin, who served in the Reagan administration, called the litigation a “foolish move.”

Soon, the law firm was ridiculed on late night television. Jimmy Fallon aired a fake infomercial for Baker Hostetler on the Tonight Show. The parody featured an ambulance-chasing lawyer pitching his firm. “At Baker Hostetler, we specialize in one thing,” the actor said, “suing the president. For instance, have you ever been forced to pass Obamacare, even though you didn’t like it? We can help you waste thousands of dollars in taxpayer money to fight for what you sort of believe in.”

The New York Times reported that Rivkin was “under pressure after facing criticism” from his colleagues “that he had taken on an overly partisan lawsuit.” Partners at his firm, the Times wrote, “feared the case against Mr. Obama could drive off potential clients and hurt Baker Hostetler’s credibility.” I learned from an attorney involved in the matter that when the contract was initially signed, a conflict check was performed, and the firm “backed the case.” However, within a week after the contract was announced, partners at the firm started to receive urgent calls from general counsels of clients in the health care industry. Baker Hostetler represents many hospital management firms and insurance companies, particularly at its office in Columbus, Ohio. All of the calls from the general counsels had the “identical” message: they were under pressure, and could not continue to associate with Baker Hostetler if it litigated the House’s lawsuit.

The attorney I spoke with said it was “suspicious” that they all gave the “same” message very shortly after the contract was announced. There was a concern – confirmed by at least one general counsel – that the Obama administration was quietly pushing health care companies to drop Baker Hostetler. After these calls came in, Rivkin’s colleagues told him, “you can’t do this.” The contract with the House prohibited partners at Rivkin’s firm from any “lobbying or advocacy” concerning the ACA. Many of Rivkin’s colleagues lobbied for health care reform. Although the House was willing to amend the contract to strike this provision, all of the parties agreed that this would be a valid basis to cancel the representation.

This withdrawal was particularly bittersweet for Rivkin. In 2010, he was the first attorney to represent Florida in its constitutional challenge to Obamacare. However, after Pam Bondi was elected as Attorney General of Florida, she opted to replace Rivkin with SCOTUS-superstar Paul Clement. Bondi wanted to hire someone who would argue at the Supreme Court, though she admitted it was an agonizing decision to switch horses in the middle of the race. In 2013, Rivkin told me that he understood the decision and took it graciously. It was a “typical Washington thing,” he said. In 2014, after he had to withdraw from the House’s case, Rivkin was angry at this political hardball that was completely beyond his control.

This is also not the first time the House Republicans have been in this sort of predicament. In 2011, the Obama administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act. The House of Representatives hired Paul Clement, then of the King & Spalding law firm, to take the case and litigate it all the way to the Supreme Court. Under pressure, Clement’s firm asked him to drop the case. Rather than quitting, Clement announced that he would resign from King & Spalding “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.”

Tony Mauro reported in The National Law Journal that “pressure from within King & Spalding – as well as from some of its clients – were said to be factors in Clement’s exit.” Dahlia Lithwick wrote in Slate that “Human Rights Campaign, the gay rights advocacy group that had been agitating against Clement’s defense of the law, is happy to claim responsibility for pressuring the firm to abandon its representation.” A spokesman for HRC said that the LGBT organization “contact[ed] King & Spalding clients to let them know that the group viewed the firm’s defense of DOMA as unacceptable.” He added: “We are an advocacy firm that is dedicated to improving the lives of gays and lesbians. It is incumbent on us to launch a full-throated educational campaign so firms know that these kinds of engagements will reflect on the way your clients and law school recruits think of your firm.”

In a tradition dating back to John Adams’s defense of the Red Coats who opened fire during the Boston Massacre, attorneys are ethically obligated to continue representing a client, even if the cause is unpopular, or if they may lose other business. Clement wrote in his resignation latter that “when it comes to lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.” Firms should consider those factors before accepting a client, not after the representation begins.

For example, after he retired as attorney general, Eric Holder joined the firm of Covington and Burling. It was reported in The National Law Journal that the former Obama administration official – no friend of the financial industry – “may have lost a client because the firm hired him back.” Holder recalled, “One big bank went to Covington and said, ‘If you hire this guy, that is going to put at risk the relationship between this firm and this bank.’” The former attorney general relayed a conversation with the firm’s chairman, who said, “I guess we’re not going to have a relationship anymore, because he’s coming back to Covington.” Note that this decision happened even before Holder had joined the firm, whereas Clement was asked to withdraw after the firm accepted the case.

Following his resignation, Clement was able to immediately join the Bancroft law firm and continue his representation of the House. Over the next five years, Clement would establish Bancroft PLLC as a preeminent Supreme Court litigation boutique. Recently, Clement and his colleages went back to big law by joining Kirkland Ellis.

David Rivkin told me that during the summer of 2014, he and his colleagues “spent weeks scrambling to see whether [they] could find a way to continue representing the House.” He explained that “this was a very difficult process for all of us as we had to balance our ethical obligations to the House and other Firm clients as well as numerous other considerations,” particularly in light of their work over the past year to “develop the legal architecture” of the case. “A number of options were considered,” Rivkin said. “Unfortunately, all of them would have required a considerable period of time to implement and the House wanted to file the lawsuit as soon as possible. In the end, withdrawing was the only viable option.”

The House, without a lawyer for its case, frantically approached many of the top firms in Washington, D.C. They asked veteran litigator Chuck Cooper, who served in the Reagan administration, to take the case. The founding partner of the Cooper and Kirk law firm declined. The House also asked Michael Carvin and Greg Katsas of Jones Day. Katsas had argued alongside Carvin before the Supreme Court in NFIB v. Sebelius. Jones Day also declined the House’s case. An attorney at the firm told me they did not think it was a winning argument to challenge the delay of the employer mandate. Specifically, the employer mandate would go into effect in 2016, thus potentially mooting the case before it worked its way up to the Supreme Court. President Obama made a similar point in ridiculing the suit. In his July speech in Kansas City, Obama said, “It’s estimated that by the time the thing was done, I would have already left office. So it’s not a productive thing to do.”

After a harried search, the House selected D.C. lawyer William Burck of Quinn Emanuel Urquhart & Sullivan LLP. I learned that Quinn Emanuel was deemed a better option because it was a litigation firm that did not lobby on behalf of the health care industry. However, three weeks later, without any explanation, Burck withdrew from the case under similar pressure from his firm. An attorney involved in the selection process told me it was “embarrassing.” Another attorney said House Republicans were “pissed” and “irritated how everything played out.”

After two attorneys dropped out in one month, the House could not afford another miscue. An attorney advised Speaker Boehner that they needed an academic to litigate the case who “would not have any conflicts.” (Academics can do more than write about the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria). They soon chose Jonathan Turley, a law professor at George Washington University. Turley, though a liberal who supported national health care, had been a staunch critic of President Obama’s executive actions. Months earlier, he warned that “what the president is doing is effectively amending or negating the federal law to fit his preferred approach. Democrats will rue the day if they remain silent in the face of this shift of power to the executive branch.” On November 18, Turley was officially hired. House Democrats still objected to the case. Rep. Robert Brady (D-PA) carped that Turley should not allow unpaid law students who have “not passed the bar” to be “exploited” by working on this case.

On November 21 – nearly four months after the House authorized the suit – Turley filed House of Representatives v. Burwell. In addition to the employer mandate claim, Turley’s complaint also asserted that the Obama administration was paying subsidies to insurances companies that were not appropriate. This additional claim proved decisive, as the court dismissed the mandate-delay claim. In May 2016, Judge Collyer ruled that the payments were illegal. The case is already on appeal to the D.C. Circuit, and will probably be argued in early 2017.

—
Josh Blackman is a constitutional law professor at the Houston College of Law, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016).

I’ve published in The Hill a commentary on the ACA that recognizes a simple truth: so long as the American people want to keep the plans they like, healthcare reform is impossible.

The greatest flaw in the Affordable Care Act is not structural, but cultural. In selling the law, President Obama made an unkeepable promise that we could keep the plans we like. When insurers began to cancel policies—in compliance with the government’s mandates—the Administration continued to assure the public that Obamacare could expand coverage without inflicting any costs on the insured. This was a fantasy. Until the administration frankly addresses the cost of covering the poor and uninsured, we are stuck with the same Obamacare paradox we started with: The American people are not interested in sacrificing their own coverage so that others will benefit. Because there was never true buy-in for healthcare reform, the law cannot accomplish its transformational goals.

Before the Affordable Care Act was enacted, Americans with insurance liked their plans. From 2001 and 2008, Gallup annually surveyed the insured on how they would rate the quality of their personal health care. Consistently, year after year, more than 80% of respondents rated it as good or excellent. A February 2007 poll by CBS News found that 85% of people were satisfied with the quality of their own health insurance. A September 2009 Quinnipiac University poll found that 88% of respondents were satisfied with their coverage. As I discuss in my new book, Unraveled: Obamacare, Religious Liberty, and Executive Power, people who had insurance overwhelmingly liked it.

Yet, despite the fact that Americans were happy with their own coverage, they also recognized that the health care system did not serve everyone equally. For example, 59% of the respondents in the CBS survey were very dissatisfied with the cost of insurance for the countryas a whole. Further, 90% said the U.S. health care system needed fundamental change. The CBS pollsters observed a contradiction: “Americans think the U.S. health care system needs major fixing, though they are generally satisfied with the quality (but not the cost) of their own health care.” During the July 2008 NetRoots Nation Conference, future Vox-founder Ezra Klein referred to this tension as a “paradox.” Roughly the same percentage of the insured wanted to keep their own coverage, but simultaneously improve everyone else’s care. You can’t do both.

The President’s promise that people can keep their plans was not only misleading, but created the wrong culture of how reform would work.

The like-your-plan-keep-your-plan pitch was not only disingenuous, but was also self-defeating. So long as people believe that their own coverage will not be disrupted—through higher premiums, smaller networks, larger deductibles—healthcare reform cannot succeed. If the United States is to in fact embrace health care as a “right,” beyond mere platitudes, the government must be frank about the immense sacrifice this entails. Unless that happens, the Affordable Care Act cannot survive the rational self-interest of people who still want to keep the plans they like.

Even worse, one of the few cost constraints in the ACA–the cadillac tax–was unceremoniously delayed. It will likely never go into effect.

The law will continue to limp along, until it can no longer stand.

Cross-Posted at Volokh Conspiracy

 

On June 25, 2015, the Supreme Court ruled in King v. Burwell that customers who purchase insurance policies on the federal exchange could receive federal subsidies. Beyond the intricacies of statutory interpretation and administrative law, this case should be studied for the attorneys’ vigorous and effective appellate advocacy.  Chapters 21 and 22 of Unraveled provide a step-by-step breakdown of how Mike Carvin of the Jones Day law firm faced off against the Justice Department. Although Carvin did not win the case, he did win the race to the Court.

Speed Bump

In May 2013, Jacqueline Halbig and several other plaintiffs challenged the legality of the IRS Rule that treated federal and state exchanges identically for purposes of subsidies. (I will spare you a rehash of the meaning of “established by the state”). The case, backed by the Competitive Enterprise Institute, was brought by Mike Carvin and his colleagues at Jones Day.  Over the next four months, Carvin and the government filed a bevy of dueling motions, the former trying to rush the case, and the latter trying to stall. Despite the pressing nature of the case, Judge Richard W. Roberts did not rule on a single motion.

On September 10, Carvin filed a motion for a preliminary injunction and requested expedited hearing within twenty-one days, noting that the IRS Rule would go into effect in less than three months. Then Carvin rolled the dice. He submitted a “suggestion of reassignment,” asking the court to transfer the case to another judge. This move was risky, as Judge Roberts may have resented the suggestion that he was unfit for the case. Carvin, however, had legitimate grounds for the reassignment. Two months earlier, Judge Roberts was elevated to become Chief Judge of the district, which entailed significant administrative duties. The overworked Roberts finally found a motion he wanted to rule on. (Roberts would resign from the bench under suspicious circumstances in 2015). Three days later, Halbig v. Sebelius was reassigned to Judge Paul L. Friedman, who promptly scheduled oral arguments for October 22, 2013.

Carvin, however, was not content to let the entire case hinge on how the D.C. court would rule. Long before the case was reassigned, the attorneys began searching for a new set of plaintiffs to file an identical suit in the Eastern District of Virginia. There were several purposes for filing the parallel suit. First, the federal district court in Richmond is known as the Rocket Docket, and would yield a decision quickly. Second, and more importantly, the challengers were already looking ahead to the Supreme Court. The Supreme Court is more likely to accept a case for review if the issue has divided the federal courts of appeals. This is known in as a circuit split. By litigating parallel cases in D.C. and Virginia, Carvin speculated that if one rules in his favor and one rules against him, that would make the likelihood of Supreme Court review much greater. This stratagem proved to be prescient, as this is precisely what happened on July 22, 2014 – each court went in a different direction on the same day.

Both cases moved at an uncharacteristically brisk pace. During oral arguments, Carvin recalled that Judge Friedman told everyone, “Look, I’m just the speed bump. You guys want to get out.” He was the first to decide. On January 15, 2014, three months after the case was argued, the court ruled in favor of the government. One month later, Judge Spencer in the Eastern District of Virginia ruled against the parallel case, King. With that, the challengers were off to the races. Judge Spencer’s decision was appealed to the Fourth Circuit Court of Appeals, also in Richmond. Judge Friedman’s decision was appealed to the D.C. Circuit Court of Appeals, which promptly ordered expedited briefing and oral arguments.

Circuit Split

Coincidentally, oral arguments in Halbig v. Sebelius were held on March 25, 2014 – the same day the Supreme Court would hear arguments in Hobby Lobby v. Sebelius. As the proceeding began, D.C. Circuit Judge Thomas B. Griffith joked, “So, I guess this is the group that couldn’t get into First Street this morning.” The Supreme Court, located at One First Street NE, was about half a mile down Constitution Avenue. Joining Judge Griffith on the bench were Judges Harry T. Edwards and A. Raymond Randolph. Two months later, on May 14, 2014, the Fourth Circuit Court of Appeals would hear arguments in King v. Sebelius.

Usually, circuit splits take months, if not years to percolate through the federal courts. On July 24, 2014, within a span of several hours, a circuit split was created in the tax subsidies litigation. At 10:20 am, a divided panel of the D.C. Circuit ruled that the federal government could not provide refundable tax credits on the federal HealthCare.gov. Two hours later, the Fourth Circuit issued a unanimous opinion supporting the IRS Rule.

A lawyer for the challengers told me that the fastest circuit split on record likely wasn’t a “coincidence. Isn’t it far more likely that the 4th Circuit had prepared its ruling and kept it on hold, in anticipation of a likely invalidation from the D.C. panel? By issuing its ruling right after the D.C. court, the 4th Circuit got the last word.” The D.C. Circuit would not have a chance to respond to any of their arguments. I asked a senior Justice Department official how he reacted when the D.C. and Fourth Circuits ruled within hours of each other. He quipped, “Now that was remarkable, wasn’t it?”

Even more remarkable would be the ensuing dogfight between the government and the challengers. Michael Carvin hatched his strategy to get the case to the Supreme Court right away, as the government steadfastly resisted and tried to keep the case far away from the Justices

Dueling Petitions

Flash back to November 21, 2013. As all eyes were focused on the HealthCare.gov crisis, Senate Majority Leader Harry Reid (D-NV) triggered the “nuclear option.” This parliamentary procedure, eliminated the filibuster for all presidential nominations except for the Supreme Court. That move paved the way for Senate Democrats to easily confirm three new Obama nominees to the D.C. Circuit Court of Appeals: Patricia Ann Millett, Nina Pillard, and Robert L. Wilkins. Obama’s only previous nominee to the D.C. Circuit was Sri Srinivasan, who was confirmed unanimously in May 2013. Ironically enough, the Republicans allowed Srinivasan to come up for a vote to prevent Reid from triggering the nuclear option. This détente was short-lived. Before the confirmation of President Obama’s four appointees in 2013, there were three active judges appointed by President Clinton and four active judges appointed by the Presidents Bush. Afterwards the balance was shifted, seven to four. The significance of this realignment would become apparent in the wake of Judge Griffith’s decision in Halbig v. Burwell.

Mike Carvin recognized the changed dynamics. “When we filed in D.C. it was the best circuit in the country,” Carvin told me. “By the time we got up there, it was not the best circuit in the country.” So the goal was simple – appeal the losing King case from the Fourth Circuit to the Supreme Court as soon as possible, before the D.C. Circuit could grant rehearing en banc in Halbig. But the government had just the opposite strategy. The Justice Department wanted to persuade the D.C. Circuit to grant rehearing en banc as soon as possible, while delaying any appeal to the Supreme Court. If the D.C. Circuit sitting en banc ultimately sided with the government, then there would be no more circuit split, and the Supreme Court was less to even take the case. The race to the court was set.

The Fourth Circuit’s decision in King v. Burwell, rejecting the challenger’s reading of Section 36B, was released on July 22, 2014. Under the Supreme Court’s Rule 13, parties have ninety days to file a petition for certiorari. Mike Carvin and his associates at Jones Day took nine days. On July 31, 2014, the attorneys for the challengers filed a forty-three-page brief, urging the Supreme Court to take the case right away. The genesis of the petition began well before either court of appeals had ruled. Carvin, and his associate Yaakov Roth, knew that “the minute the Fourth Circuit decision came out, we’re going to the Supreme Court.” The strategy was to “beat the government going en banc in the D.C. Circuit, and being able to say, ‘there’s already a case pending in the Supreme Court. Why are you guys going to jump?’ ”

The petition made a forceful case for why the Court must take the case right away without waiting. Specifically, “the Treasury has no idea if billions of dollars being spent each month were authorized by Congress, or if these expenditures are illegal.

It was this last argument that resonated the strongest with the Solicitor General’s Office. The petition explained that up to $150 billion would be spent each year until the IRS rule is vacated. A senior official in the Justice Department praised this element of Carvin’s strategy, saying he is a “superb lawyer and a great tactician.” The lawyer added, “there’s a very important reason to intervene earlier rather than later. I think that was an important argument for the Court granting certiorari.”

En Banc

Like the lawyers at Jones Day, attorneys in the Solicitor General’s office had already gamed out how to respond to an anticipated unfavorable ruling. Within an hour of the D.C. Circuit’s ruling in Halbig, before the Fourth Circuit had even released its decision in King, the DOJ announced that it would seek rehearing en banc. The altered composition of the D.C. Circuit certainly made that decision easier. Richard Wolf summed up the issue in USA Today: this case “illustrated what liberals have yearned for and conservatives have feared for six years: President Obama’s judges are having an impact.

On August 1, 2014, the day after the challengers petitioned for certiorari to the Supreme Court, the Department of Justice filed its petition for rehearing en banc before the D.C. Circuit. On August 18, the lawyers at Jones Day opposed the government’s petition for rehearing en banc. The message was simple: “Because the Supreme Court must ultimately resolve the validity of the IRS rule, rehearing would waste both time and effort.” Carvin saw “two ways to win.” First, the D.C. Circuit “denies en banc, at which point Halbig goes to the Supreme Court.” Second, the D.C. Circuit grants en banc, “and we still convince the Supremes to take the case.” In either case, the D.C. Circuit would not have the last word.

Michael Carvin and his team suspected that a majority of the judges on the D.C. Circuit would grant rehearing, thereby vacating Judge Griffith’s panel decision and potentially delaying the Supreme Court’s opportunity to hear the case from Virginia. So he rolled the dice once again and took an unorthodox step to prevent further dilatory tactics by the government.

SCOTUS

Under the Supreme Court’s rules, the government would have to file its brief in opposition to certiorari thirty days after the challenger’s petition for certiorari – that would be on September 3, 2014. However, under the rules, the government could request an extension of up to sixty days. Usually these requests for an extension are granted automatically by the Clerk’s office. Carvin worried that the D.C. Circuit may take this additional two-month window to grant rehearing and vacate Judge Griffiths decision. So on August 6, 2014, Carvin sent a letter to the Clerk of the Supreme Court, Scott H. Harris. “I request that any application by [the government] for an extension of that time be submitted to the full Court for consideration.” Carvin explained that “this case involves a matter of urgent public importance and petitioners there- fore oppose any attempt to delay its resolution.” In other words, the letter asked for the full Court – and presumably five Justices – to vote before an extension could be granted.

As expected, on August 27, 2014 – one week before the deadline – Solicitor General Verrilli filed a letter with the Clerk requesting a thirty-day extension. The next day, Carvin fired away a final request to the Court, explaining that the solicitor general’s arguments for the “last-minute application … are meritless.” On September 2, 2014, Mike Carvin’s phone rang. Scott Harris, the clerk of the Court said he was granting the government’s extension after he had talked to the Justices. Harris relayed that it took a while to discuss and figure out what to do, because this issue had seldom arisen. The clerk noted that any future requests for extension by the government would be looked on with disfavor.

On September 4 – two days after the Supreme Court granted the thirty-day extension – the D.C. Circuit granted rehearing en banc. Perhaps the Judges viewed the decision to grant the extension as a signal on the shadow docket that the Justices weren’t in a hury. Now, Judge Griffith’s opinion was vacated and arguments were set for December 17.

On October 3, 2014, as scheduled, Solicitor General Verrilli filed his brief with the Supreme Court opposing the petition for certiorari. The argument was simple: because there is no longer a circuit split, there is no reason for the Supreme Court to get involved. This was not an argument he could have made had the brief been filed a month earlier. Eleven days later, Carvin and his associates would file one last plea to the Supreme Court, urging the Justices to “put these challenges to rest.” They charged that the government’s attempt to keep the case away from the Court was “irresponsible” and “out of touch with reality.”

After this lengthy dogfight, the challengers prevailed. On Friday, November 7, 2014, at least four Justices voted to grant certiorari. They did not think much of giving the full D.C. Circuit an opportunity to hear the case.

On November 10, the Jones Day attorneys cheerfully filed a motion with the D.C. Circuit to hold Halbig v. Burwell in abeyance pending the resolution of King v. Burwell. The motion noted, “The Supreme Court’s resolution of King will directly control this case.” Two days later, the court ordered Halbig v. Burwell to be removed from the court’s calendar and held in abeyance pending King v. Burwell. The eleven judges of the DC Circuit would not have another shot at the case. This issue would now be resolved by the Justices. Seven months later, the Court–by a vote of 6-3–ruled for the government. At least one of the Justices who ruled against the challengers also voted to hear the case without the benefit of en banc review.

 

—

Josh Blackman is a constitutional law professor at the Houston College of Law, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016).