As we suggested might happen, the Supreme Court has granted certiorari in King v. Burwell. The core of this case, as copious press reports have noted, is whether the Affordable Care Act’s limitation of premium tax credits to exchanges “established by the State” was sloppy drafting or an intentional effort to limit tax credits to those states that choose to establish their own exchanges/marketplaces (as opposed to deferring to the federal government).
In light of the pending Supreme Court review, as press reports have noted, the D.C. Circuit has removed from its calendar the en banc rehearing of the like case of Halbig v. Burwell. The government is asking the 10th Circuit to delay its hearing of Pruitt v. Burwell, another case presenting the same issue.
Some have speculated that the Supreme Court’s decision to address the tax credit issue prior to the D.C. Circuit’s en banc rehearing is an indication that the Court intends to strike down subsidies on federal exchanges. If the Supreme Court waited for the D.C. Circuit to act first, it would have made Supreme Court review less likely (unless the 10th Circuit in Pruitt found for plaintiffs in the interim). We won’t know for certain what is on the Supreme Court’s collective mind until, most likely, the end of June 2015.
In the meantime, the Supreme Court is adding to health law uncertainty for consumers, just as the 2015 open enrollment period commences. We will continue to monitor and post regarding further developments.