BREAKING: Halbig judgment withdrawn, case moves to full DC Circuit

This Just In from Ian Millhiser at Think Progress:

In July, two Republican judges on the United States Court of Appeals for the District of Columbia Circuit handed down a decision defunding much of the Affordable Care Act (ACA). This effort to implement Sen. Ted Cruz’s (R-TX) top policy priority from the bench was withdrawn on Thursday by the DC Circuit, and the case will be reheard by the full court — a panel that will most likely include 13 judges. In practical terms, this means that July’s judgment cutting off subsidies to consumers who buy insurance plans in federally-operated health exchanges is no more. It has ceased to be. It is, in fact, an ex-judgment.

(Bonus points to Millhiser for the Monty Python nod.)

OK, so this means that the case will simply get bumped up to the SCOTUS, right? Well, not necessarily:

Two hours after the divided DC Circuit panel released its opinion attempted to defund Obamacare, a unanimous panel of the Fourth Circuit upheld the health subsidies that are at issue in Halbig. Thus, so long as both decisions remained in effect, Supreme Court review was very likely. Now that the full DC Circuit has vacated the two Republican judges’ July judgement, Supreme Court review is much less likely.

Although it is possible that the full DC Circuit could agree with the two judges who voted to cut off health subsidies to millions of Americans, this outcome is unlikely. The plaintiffs’ arguments in this case are weakand are unlikely to move judges who do not have a partisan stake in undermining the Affordable Care Act.

Read the whole piece for a great refresher course on the Halbig/King situation.

Aside from everything else, the real-world takeaway from this is that, as a Twitter follower of mine noted, this pretty much means that the final ruling by the Supreme Court (assuming they end up taking the case on at all) will almost certainly be well after the 2014 election and the 2nd full Open Enrollment period.

By that time, the odds are very likely that there will be upwards of 8.3 million people receiving tax credits via Healthcare.Gov (assuming 13 million exchange QHP enrollees, of which 75% are enrolled via the federal exchange, of which 85% receive credits).

Are 5 of the 9 SCOTUS willing to screw over 8.3 million people over the interpretation of a single part of a single sentence of a single sub-section of a massive federal law, but without any particular good being accomplished by it otherwise other than to teach the Democratic members of Congress a lesson about sloppy editing?

Well, Scalia, Thomas and Alito would, of course. However, as I've noted before, unlike the poorest citizens of the U.S., who tend not to vote or have much of a voice in the political process otherwise, most of these particular 8.3 million people aren't "dirt poor".

In fact, most of them likely aren't even members of the "working poor" who were screwed by the Medicaid expansion denial in half the states...(roughly $23K - $33K for a family of 4, though of course many states are even more restrictive on qualifying) and even those states are scrambling to reverse themselves without losing face as a result of the political fallout.

No, many/most of the 8.3 million people who would be screwed over by the SCOTUS ruling against the IRS on the Halbig/King cases would belong to what's left of the middle class (roughly $33K - $94K for a family of 4)...and they tend to vote.

According to the U.S. Census Bureau, in 2012, voter turnout by household income level was:

  • Under $10K: 39.1%
  • $10K - $15K: 36.6%
  • $15K - $20K: 40.9%
  • $20K - $30K: 46.4%
  • $30K - $40K: 50.8%
  • $40K - $50K: 57.2%
  • $50K - $75K: 63.7%
  • $75K - $100K: 70.0%
  • $100K - $150K: 73.1%
  • $150K and up: $76.9%

Notice any trends there?

That's why if I was a Republican, I wouldn't be jumping for joy at the prospect of "winning" Halbig/King at the end of the day.