With the White House and most of official Washington still reeling from the back-to-back contradictory Obamacare rulings by two U.S. Court of Appeals panels on Tuesday, legal experts told Newsmax that the Supreme Court was almost sure to hear the controversial case by the spring of 2015.
"The ruling by the three-judge panel of the D.C. Circuit Court of Appeals [which struck down an IRS regulation providing subsidies to people purchasing health insurance on exchanges run by the federal government] and the ruling a few hours later by a panel of the 4th Circuit [upholding the IRS' power to provide such subsidies] certainly sets up a situation for the Supreme Court to have the last word," Carrie Severino, chief counsel of the Judicial Crisis Network, told Newsmax.
According to Hans von Spakovsky, senior legal fellow at the Heritage Foundation, "While the Supreme Court accepts only about 1 percent of the cases seeking its review, it's now roughly 100 percent guaranteed that the court will take up these two cases.
"The obvious conflict created in the federal circuits by Tuesday's rulings must be resolved quickly, simply because the stakes are so high. The subsidy issue involves enormous amounts of money and is critical to the administration of a major portion of Obamacare."
Barely two hours after the ruling of the D.C. Circuit Court panel [against the subsidies], there were questions about it at the White House on Tuesday.
Press secretary Josh Earnest noted four different cases on this point "are making their way through the federal court system." One of them, King v. Burwell, was dealt with by the 4th Circuit panel on Tuesday afternoon. Its ruling upheld the subsidies on federal exchanges — in other words, the polar opposite of the ruling by the D.C. Circuit Court panel earlier in the day.
"My assumption is that the losers in King v. Burwell will file a petition for certiorari, which asks the Supreme Court to review a case," said Severino, a former clerk to Supreme Court Justice Clarence Thomas.
"Democrats have done a pretty good job working over the 4th Circuit since Obama became president and it's now pretty liberal," she added. "So why should the losers in the case drag their feet on it with a hearing before the full 4th Circuit? Just go directly to the Supreme Court, for which this is a classic case."
Severino told Newsmax that the earliest the Supreme Court is likely to review the "King" decision is at the end of September. If it decides to hear the case, "then it will most likely do so in the spring of 2015."
As for the ruling from the D.C. Circuit Court panel that struck down the subsidies on the federal exchange, the Department of Justice is almost sure to ask for an "en banc" ruling — that is, a ruling by the full 11-judge circuit court. But given the completely contradictory ruling from the 4th Circuit panel, it may be that the Supreme Court agrees to decide the issue before any decision by the full D.C. Circuit Court.
With an estimated 4.7 million Americans eligible for subsidies, there are serious questions as to whether the Affordable Care Act can survive if the Supreme Court strikes down the IRS power to issue subsidies. ABC's White House correspondent Jon Karl posed this question to press secretary Earnest, asking three times if the decision against subsidies is upheld: "Does it gut Obamacare?"
The president's top spokesman punted, telling reporters: "The intent of Congress in this case, I think, is not just clear, it's transparent. Congress intended for every eligible American to have access to these tax credits that lower their healthcare costs, whether or not the marketplace was run by federal officials or state officials."
John Gizzi is chief political columnist and White House correspondent for Newsmax.
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