Obamacare Subsidies Case Headed Back to Court

The D.C. Circuit Court will hear the court case over the legality of Obamacare subsidies in the federal exchanges all over again, the court announced Thursday.

At risk are premium tax credit subsidies for Obamacare customers using federally-run exchanges. The text of the Affordable Care Act which authorizes the subsidies states that the funding should go only to customers in exchanges “established by the State,” leading the plaintiffs in Halbig v. Burwell to argue that subsidies are illegal for federal HealthCare.gov customers — which account for the vast majority of Obamacare enrollees nationwide.

While the D.C. Circuit originally voted 2-1 in favor of Halbig, the Obama administration quickly moved to ask the court hear the case over. The Department of Justice requested that the D.C. Circuit decide the case over again in a rare en banc hearing, which are only granted in exceptional cases.

All 11 active judges, as well as two senior judges who heard the original case, will hear Halbig v. Burwell over again in December. The Obama administration expects to be luckier in the rehearing, because the full court appears to lean left. The case will now be heard by eight Democratic-appointed judges and five Republican-appointed judges