In a footnote on the last page of the government’s petition for rehearing en banc in Halbig, we find this parting note:
The panel majority suggested that its ruling would apply nationwide, Op. 41-42, but it did not squarely hold as much or address the many reasons why relief should not extend beyond the named plaintiffs. The panel’s decision does not control in other circuits, just as the Fourth Circuit’s King decision does not control here.
If I read that right, the government has taken the position that Halbig would *only* apply to the named plaintiffs. In other words, even if the Supreme Court upholds the D.C. Circuit’s judgment, it would only apply to the named plaintiffs, and not the millions of people in 36 states. In other words, the Treasury Department could continue paying out funds that were illegal, as long as they weren’t paid to the named plaintiffs.
This can’t possibly be correct.