A rapid appeal from the Fourth Circuit would be a legal and public service.
Liberals are telling themselves that the latest ObamaCare legal challenge won’t amount to much, although more nervously after the D.C. Circuit Court of Appeals ruled Tuesday that the White House is defying the law’s plain text by allotting insurance subsidies through the federal exchanges. Allow us to increase their anxiety by speeding things along to the Supreme Court.
The Justice Department hopes to deep-six Halbig v. Burwell by asking the D.C. Circuit for en banc review. The Administration hopes the full 11-active-member court will overturn Judge Thomas Griffith’s decision and thus avoid a conflict among the appellate circuits so the Supreme Court wouldn’t take the case.
As it happens, however, on Tuesday the Fourth Circuit ruled in favor of the government in King v. Burwell. Liberals are touting the Fourth Circuit’s logic as one reason Halbig is frivolous, even if that panel did recognize the gravity of the plain-text-of-the-law questions. But the decision may really be a stroke of luck. The losing lead litigator in the Fourth Circuit, Michael Carvin of Jones Day, can now petition the High Court to hear his expedited appeal, and we hope he pursues that option as quickly as possible.
There doesn’t have to be an appellate conflict for four Justices to agree to hear a case, and in King v. Burwell Mr. Carvin can point to the policy benefits of a quick resolution. The subsidies will continue to flow as long as the litigation is ongoing, which means that tens of billions of dollars are being distributed illegally. Two other cases are also challenging this law-breaking, one in Oklahoma (the Tenth Circuit) and another in Indiana (the Seventh).
The Supreme Court could wait for another appellate conflict to emerge. Yet the delay could last two years or more and compound the policy harm if the Administration’s ObamaCare rewrite is ultimately vacated. The sooner the Administration has to ask Congress to fix its mistake, the better for the country.