- The Washington Times - Thursday, August 21, 2014

Obamacare challengers have asked a federal appeals court to stand down and let the Supreme Court decide whether the government may give subsidies to people who used the federal health exchange, a standoff that threatens to upend the health overhaul.

The Court of Appeals for the Circuit of the District of Columbia previously ruled against President Obama in a 2-1 decision that said subsidies may only flow to health exchanges set up by states, based on a phrase in the Affordable Care Act that suggests that is what Congress intended.

The ruling invalidated an IRS rule that extended subsidies to exchanges in every state.

But the administration wants the entire court to review the case “en banc.” Lawmakers never intended to treat various states differently, it has argued, and cutting off subsidies to about two-thirds of the states could ruin Obamacare.

Attorney Michael Carvin filed papers this week that argue another D.C. Circuit hearing would be a waste of time.

Judges on the 4th Circuit in Richmond ruled in favor of the Obama administration, and the split makes the case ripe for the Supreme Court, he wrote.

“Continued uncertainty over the validity of the IRS Rule at issue is simply not tenable, given its enormous consequences for millions of Americans, hundreds of thousands of businesses, dozens of states, and billions of dollars in monthly federal spending,” his brief says. “Only the Supreme Court can lift that doubt by giving a definitive answer to the challenge raised here (and in other suits).”

Jonathan Adler, a law professor and key architect of the Obamacare challenge, wrote in The Washington Post this week that “if the [D.C. Circuit] is going to grant rehearing, it is likely to do so quickly.”

“As a general rule, the longer it takes, the more likely it is that the petition will be denied,” his blog post said.