QUOTE (StrangeSox @ Sep 30, 2014 -> 02:27 PM)
Apparently the 10th circuit is 7 democrat-appointed judges and 5 republican appointed ones, so this could end up being just like the D.C. circuit and reversed en banc.
The problem for the plaintiffs is that under the Chevron doctrine, courts are deferential to agency interpretations of ambiguous statutes. When you read one line out of thousands within the bill, you can make the argument that the plaintiffs are that the statute excludes federally run exchanges and does so intentionally. Looking only at that one line and nothing else within the bill or any of the legislative history (nobody seemed to think this was a clever and deliberate way to force states to set up exchanges until this 'glitch' was discovered by people looking to destroy the ACA using any means necessary), it may even be the most plausible interpretation. When you read that line in the context of the rest of the bill, that argument is harder to make, and the intention of including federal subsidies becomes more likely.
But really, which one is "more likely" doesn't matter. The courts don't decide that; as long as the IRS's "federal subsidies are ok" interpretation is a plausible reading of the statute, it's fine. Even if it's not the most likely interpretation, courts will still defer to the agency.
So on Friday the SC granted cert (meaning they will hear the case) in King v Burwell, another case along the same lines as Halbig. The ruling in King was in favor of statutory interpretation i.e. federal exchanges are eligible for subsidies.
What many people are fearing now is that if the SC accepts the "Moops invaded Spain" argument that's being put forth, millions of people in states that didn't establish their own exchanges will suddenly lose their subsidy eligibility and their access to affordable health care. They won't be able to afford plans without the subsidies, and they won't be eligible for Medicaid, especially in states that didn't take the expansion once the SC made it voluntary.
Now, only four justices need to agree to hear a case, and we don't know who voted for cert and why, but it's hard to imagine that the liberal four would be confident enough in another Roberts "split the baby" ruling to vote for cert, and the other four on the court were more than ready to toss the entire law last time.