The “Dangerous Mindset” about the D.C. Circuit in Halbig

August 29th, 2014

Greg Stohr of Bloomberg News interviewed me about the D.C. Circuit’s pending decision concerning rehearing en banc in Halbig. I noted that the mindset of Harry Reid, Emily Bazelon, and others, that the court will vacate the panel decision just because there are more Obama appointees on the court presents a “dangerous mindset.”

Senate Majority Leader Harry Reid, a Nevada Democrat, last month fueled the perception that the Democratic appointees would tip the balance. Asked whether the D.C. Circuit panel’s decision vindicated his decision to change the voting rules, he replied, “if you look at simple math, it sure does.”

Those comments, and the assumption that the D.C. Circuit will divide along partisan lines to uphold the IRS rule, have drawn fire from critics of the health-care law.

“It’s a really dangerous mindset,” said Josh Blackman, a professor at South Texas College of Law in Houston who wrote a book on the first health-care case. He called the D.C. Circuit a “very professional court” with a tradition of granting full-court review sparingly.

A decision by the full appeals court to reverse the panel would eliminate the circuit split, making a Supreme Court grant of review less of a necessity. Although the justices could still get involved, they might be reluctant to outlaw subsidies being used by millions of Americans.

Two years ago, four justices said they would have thrown out the entire law. Chief Justice John Roberts joined the court’s four Democratic appointees in voting to largely uphold the measure.

The S.G. Brief in Opposition to Cert is due on Wednesday, September 3. Stay tuned.