The Obama administration on Friday asked a top federal appeals court in Washington, D.C., to reverse a recent bombshell ruling that threatens to cripple the Obamacare health-care reform law.
The administration's move came a day after plaintiffs asked the Supreme Court to hear an appeal in an effectively identical case—and to rule once and for all on the fate of billions of dollars worth of financial assistance given to nearly 5 million Obamacare enrollees in two-thirds of the U.S.
Friday's motion by the Obama administration, which was expected, asks the entire judicial lineup of the U.S. Court of Appeals for the D.C. Circuit to hear arguments that will seek to overturn a 2-1 ruling by three judges in that circuit on July 22.
That decision found that subsidies given to customers of a federal insurance marketplace such as HealthCare.gov are illegal under the Affordable Care Act because the ACA only explicitly authorizes such financial aid in the form of tax credits to go to enrollees in a state-run exchange.
Hours after the D.C. Circuit panel ruled, another three-judge panel in the 4th Circuit federal appeals court unanimously ruled that the subsidies are legal.
Legal experts say the administration has a very good chance of getting the D.C. appeals court panel ruling in the case known as Halbig v. Burwell overturned if granted the so-called en banc review by the full court.
That's because the majority of judges on that circuit are appointees of Democratic presidents, including President Barack Obama himself.
For that review to happen, a majority of the 11 active judges on the circuit need to vote to rehear the case, as requested in the motion that can be read here: Halbig en banc petition.
Two of the senior status judges who heard the original appeal in the Halbig case would be eligible to sit en banc with the active judges—but Republican appointees would still be outnumbered 8 to 5.
"Today, the government asked for a full review of a 2-1 decision in the Halbig case, as we said we would do last week," said a senior Obama administration official who spoke on the condition of anonymity. "We believe that this decision is an outlier and the full circuit court will agree with Congress and common sense, and the 4th Circuit's contrary ruling on the same issue."
"This litigation should be seen for what it is—another partisan attempt to undermine the Affordable Care Act," the senior official said.