Breaking: Divided Panel of D.C. Circuit Orders Response in House of Representatives v. Burwell

December 29th, 2016

Last night I blogged about the proposed intervenors’ emergency motion to suspend the abeyance to consider their motion to intervene. The House of Representatives (unsurprisingly) opposed. The Justice Department took no position. Now they’ll need to.

This morning at 9:49 AM ET, a divided panel of the D.C. Circuit (Tatel and Srinivasan) ordered both parties to file a response by January 6. The proposed intervenors can file a reply by January 11. Presumably, any resolution will come before the inauguration.  Judge Henderson dissented, and would have denied the emergency motion.

This order puts the Justice Department in an odd posture. As a matter of institutional policy, the Department in comparable cases tends to oppose motions to intervene–they can handle their own business. For example, in U.S. v. Texas, the DOJ opposed a motion to intervene by would-be beneficiaries of DAPA. The 5th Circuit overruled Judge Hanen, and held they could intervene. They were also permitted argument time at the Supreme Court. (It was not helpful to the government’s case). But here, the political appointees in the Justice Department may have a vested stake in the survival of Obamacare, so would be inclined to let Andy Pincus represent their interests going forward. Till January 6.