En bancing on Halbig

Noted asshole and Washington Post blogger Jonathan Adler’s quest to deny poor people the freedom of getting subsidized health insurance that could improve their well-being was dealt another blow this morning:

This morning the U.S. Court of Appeals for the D.C. Circuit granted rehearing en banc in Halbig v. Burwell, one of four cases challenging the lawfulness of an IRS rule authorizing tax credits and cost-sharing subsidies for the purchase of health insurance in federal exchanges….

The order is here.  Oral argument is scheduled for December 17.  In all likelihood, an opinion would not issue before mid-to-late Spring.

En banc rehearings only occur on matters of high importance to a Circuit Court.  Typically it is to either re-affirm a high priority decision or to correct what the majority of that circuit believes to be a monumental fuck-up.

Halbig is a monumental fuck-up.  Vacating Halbig means there is no Circuit disagreement at this time, so the Supremes are highly unlikely to grant cert for the Oklahoma King case. The highly probable spring time decision is Halbig is a monumental clusterfuck of a ruling that, if a similar brief in logic and substance was submitted by a second year law student, a nice professor would advise that student to look into another area of law to concentrate on.

Update 1 The Supremes seem to want to duck King as they agreed to a government request for an extended deadline on filing briefs. This delays any cert decision for a while. King is the case decided by a 3-0 margin that effectively laughed at Adler and Cannon’s argument. [h/t Joan McCarter at Daily Kos ]

35 replies
  1. 1
    Omnes Omnibus (the first of his name) says:

    My god, Adler packs quite a bit of disingenuous argument into a pretty small amount of text.

  2. 2
    MattF says:

    More details on the questions here at ThinkProgress:

    http://thinkprogress.org/justi.....obamacare/

  3. 3
    Amir Khalid says:

    @Omnes Omnibus (the first of his name):
    That’s why they pay him the big bucks.

  4. 4
    Napoleon says:

    It make me sick that Adler is a prof at the law school I graduated from (he was not there when I was).

  5. 5
    dmsilev says:

    Question for the legal tea-leaf-readers: Is the Supreme Court likely to wait until after the en banc hearing/decision before deciding whether or not to weigh in?

  6. 6
    Barbara says:

    It’s also the case that the decisive vote in Halbig was from a judge who was not actually a member of the court, but was a lower court judge sitting temporarily by designation (a very common practice in other courts but kind of strange for the D.C. Circuit). It’s crazy that such an important case would not reflect the judgment of at least three actual members of the court. They had to hear this en banc.

  7. 7
    Villago Delenda Est says:

    I look forward to someday dancing on Jonathan Adlers’s grave.

  8. 8
    chopper says:

    @dmsilev:

    Yes.

  9. 9
    MattF says:

    @dmsilev: Since the en banc order vacates the old Halbig DC court decision, the Supremes would normally wait for a new decision before any consideration of hearing the case.

  10. 10
    Shakezula says:

    Correction – A nice law professor would give the student a swift, clean death.

  11. 11
    Omnes Omnibus (the first of his name) says:

    @dmsilev:

    Is the Supreme Court likely to wait until after the en banc hearing/decision before deciding whether or not to weigh in?

    Should the Court wait? Yes. But if it gets a cert. petition in one of the other cases and four justices decide to take the case, it can take it. I doubt that it will though.

    ETA: To clarify, I think the Supreme Court will wait to see if there is a split between circuits before stepping in.

  12. 12
    dmsilev says:

    @MattF: But there was another decision on the same matter in a different circuit (forget which) which ruled in favor of the administration, and the plaintiffs appealed to the Supremes. So, if they wanted to, the Supremes could short-circuit (so to speak) the process.

  13. 13
    Omnes Omnibus (the first of his name) says:

    @dmsilev: Believe it or not, but the Court frequently looks for excuses not to take cases. I doubt that it will go out of its way to take up this issue.

  14. 14
    JGabriel says:

    OT, but annoying as hell. Elizabeth Warren and Paul Krugman are giving a talk tonight in an auditorium that is about a 5 minute walk from where I live – and I can’t go because it’s sold out, damn it.

    :(

  15. 15
    Aardvark says:

    Great news.

    Technical edit: may want to change “. . . are highly unlikely to grant cert for the Oklahoma case . . ” to ” . . . are highly unlikely to grant cert for the Virginia case . . .” or to “. . . are highly unlikely to grant cert for the Fourth Circuit case. . . “

  16. 16
    Hill Dweller says:

    The Village will ignore it.

  17. 17
    Villago Delenda Est says:

    @JGabriel: Clearly, the market has rejected the points of view of Krugman and Warren, and with equal clarity has approved of all three Atlas Shrugged movie adaptations.

  18. 18
    JPL says:

    @Omnes Omnibus (the first of his name): hahaha
    In the olden days, before Obama, maybe that was true.

  19. 19
    Villago Delenda Est says:

    @Hill Dweller:

    The Village will ignore it.

    Well, it violates the narrative that “Obamacare sucks!” that is Village dogma now.

  20. 20
    Roger Moore says:

    @Omnes Omnibus (the first of his name):

    Believe it or not, but the Court frequently looks for excuses not to take cases.

    I believe it; it’s a matter of economy of effort. They already have enough work without taking up unnecessary cases. Besides, the politically savvy ones prefer to give at least superficially well reasoned decisions, which is easier when one of the lower courts has done the hard work for you. Halbig is awfully reasoned, so they’re presumably hoping that one of the lower courts will give them something better to work with before taking up the case.

  21. 21
    Villago Delenda Est says:

    Didn’t Burnsie predict this outcome? I’m eagerly waiting for his victory lap!

  22. 22
    Omnes Omnibus (the first of his name) says:

    @JPL: Okay then, name a case that the Court has taken during the Obama Admin. that it would not have taken previously. The Court typically hears 60-70 cases a year; that number is not increasing.

    @Roger Moore: That is exactly correct, IMO.

    @Villago Delenda Est: IIRC most of the lawyers who offered an opinion on this predicted this outcome. I know I did.

  23. 23
    Roger Moore says:

    @Aardvark:
    I think you have that wrong. The point is that the plaintiffs have already appealed the Oklahoma case, so the difference of opinions between the Circuits would give them a strong reason to grant cert. Now that the 4th Circuit has granted the en banc hearing in Halbig, the Court is likely to delay granting cert in the Oklahoma case, since for the time being there isn’t a binding 4th Circuit opinion contradicting the one in Oklahoma. If the 4th sustains the decision in Halbig, the Supreme Court will be more or less forced to take the appeal to deal with the disagreement between the circuits, but they will likely hold off otherwise.

  24. 24
    Villago Delenda Est says:

    @Omnes Omnibus (the first of his name): I’ll consider that to be your victory lap.

    I am not a lawyer, and I don’t play one on the intertubes or television, but even I could see that an en banc call was going to happen. Mainly because the fuckheads of the media were so excited about it, and they are notorious for being apostles of William Kristol and Dick Morris.

  25. 25
    Violet says:

    @JGabriel: If you have the time, go anyway. There may be some seats that open up and you can fill one at the last minute. Or, someone may be scalping tickets. I got in to see someone that way. I never thought this person would be sold out so showed up to get a ticket about a half hour before it started. Nope. So stood outside and some groups had extra tickets–some of their group couldn’t make it. I got one.

  26. 26
    JPL says:

    @Omnes Omnibus (the first of his name): You win. My trust in the court is based on my emotions rather than by fact.

  27. 27
    JPL says:

    The GA man who left his child in the car to die, was charged with malice murder plus several other counts. Three of the counts have to do with s.e.xt.ing with a minor. The AJC in their haste to report the news, posted the indictment without blacking out the names of the grand jury and without blacking out the name of the minor involved in the s.e.xt.ing episode. It’s fixed now but I was probably one of dozens who called and said really you have to print the name of the minor. geez

  28. 28
    Omnes Omnibus (the first of his name) says:

    @JPL:

    My trust in the court is based on my emotions rather than by fact.

    Understandable.

  29. 29
    Barry says:

    @Omnes Omnibus (the first of his name): “Okay then, name a case that the Court has taken during the Obama Admin. that it would not have taken previously. The Court typically hears 60-70 cases a year; that number is not increasing.”

    Gutting part of the 14th Amendment in Shelby County vs. DoJ. Those measures were in place for decades, with reasonable and appropriate means for the states/jurisdictions in question to get out of the requirements. Scalia squatted and shat the ‘one time only’ principle that a 98-0 Senate vote is suspicious, because Sanhedrin. He has not used this on the Patriot Act, for example.

    The ACA decision, where reverse-piercing was used, and then immediately extended despite the original decision disavowing that.

    ” The Court typically hears 60-70 cases a year; that number is not increasing.”

    Which cases they hear, the decisions made, and the scope of those decisions can make a lot of difference.

  30. 30
    Omnes Omnibus (the first of his name) says:

    @Barry: You seem to be talking about substantive decisions; the discussion was about whether the Court was taking on more cases than previously.

    Which cases they hear, the decisions made, and the scope of those decisions can make a lot of difference.

    No shit, but not particularly germane to the discussion.

    ETA: It is a right wing majority Court and a lot of its decisions on big cases are pretty shitty as a result. It is not, in my view, reaching down and plucking “unnecessary” cases in order to fuck with the administration.

  31. 31
    Aardvark says:

    @Roger Moore: The post above has already been revised in a way consistent with my comment. I’ll just note that I’m not sure what you’re talking about.

    I think you have that wrong. The point is that the plaintiffs have already appealed the Oklahoma case, so the difference of opinions between the Circuits would give them a strong reason to grant cert.

    King is an appeal raised by appellants from the state of Virginia to the Fourth Circuit. The Oklahoma AG filed an amicus brief in support of the Virginia appellants, but King is not an Oklahoma matter.

    Now that the 4th Circuit has granted the en banc hearing in Halbig, the Court is likely to delay granting cert in the Oklahoma case, since for the time being there isn’t a binding 4th Circuit opinion contradicting the one in Oklahoma. If the 4th sustains the decision in Halbig, the Supreme Court will be more or less forced to take the appeal to deal with the disagreement between the circuits, but they will likely hold off otherwise.

    I think we’re basically in agreement, except that Halbig was decided by the DC Circuit, not the 4th. King was the 4th Circuit matter. The DC Circuit granted en banc review of Halbig. Also, there is no Oklahoma matter.

  32. 32
    Bobby Thomson says:

    @Omnes Omnibus (the first of his name):

    It is not, in my view, reaching down and plucking “unnecessary” cases in order to fuck with the administration.

    They didn’t need to take Hobby Lobby.

  33. 33
    Omnes Omnibus (the first of his name) says:

    @Bobby Thomson: There was a circuit split. That is why it was consolidated with Conestoga Wood Specialities out of the Third Circuit.

  34. 34
    Barry says:

    @Omnes Omnibus (the first of his name): And he doesn’t have comments enabled on his post.

    Then again, if I were him, I wouldn’t either, on any of my posts.

  35. 35
    Barry says:

    @Omnes Omnibus (the first of his name): ” It is not, in my view, reaching down and plucking “unnecessary” cases in order to fuck with the administration.”

    Shelby vs. DoJ was just such a thing – they deliberately picked a case which was settled law, and reversed precedents, using (as I said) a steaming one-time-only justification which I’d never heard of before.

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