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D.C. Circuit Court of Appeals Agrees to Hear Halbig ACA Case Before Full Court

Following up on our Week 22 ACA Countdown to Compliance post, the D.C. Court of Appeals granted the government’s petition for en banc review in Halbig v. Burwell, which held low income subsidies to purchase coverage through public insurance exchanges established by the Affordable Care Act were unavailable to residents of states that failed to affirmatively establish a public exchanges. The decision by the full court to hear the case vacates the earlier decision of the three-judge panel. This decision is potentially significant. Generally, the Supreme Court is far more likely to accept cases in which there is disagreement amount the Federal judicial circuits. Should the full D.C. circuit reach a different result, as is expected, then its is possible that once the remaining challenges are decided, there may well be no split in the circuits. Before today, the conventional wisdom was that this case would be decided by the Supreme Court. Now it appears that the conventional wisdom may have it wrong. At a minimum, the odds-makers might want to make some adjustments.