Well, this is awkward.

Unlike the D.C. Circuit, which split 2-1, the majority here was 3-0. Even so, the most noteworthy thing about the opinion is how tormented the court seems in trying to determine what Congress intended when it said that subsidies should be available only on “an exchange established by the State.” From page 20:

k1

Page 24:

k2

Page 28:

k3

If they can’t decide what the key phrase was designed to do, why don’t they follow the D.C. Circuit’s lead and stick with the plain text? In the first excerpt above, the court frankly admits that the language of the law seems to support the plaintiffs’ argument more strongly than it does the government’s. But that’s not good enough, they go on to say; in a case like this, where they’re analyzing a rule promulgated by a federal agency (the, er, IRS) and the meaning of the underlying statute is unclear, it’s supposed to defer to the agency’s interpretation of the law if that interpretation serves the larger purposes of the statute. Which, says the court, it does. The purpose of ObamaCare is to encourage people to buy health insurance, whether through incentives like subsidies or penalties for noncompliance like the mandate. The IRS decided that it’d be silly to read “an exchange established by the State” as excluding the federal exchange, since that would remove a huge financial incentive to buy insurance for many millions of Healthcare.gov users. Plus, the only way to make O-Care work economically is to have lots of people, especially healthy people, jumping into the risk pool. Denying subsidies to federal exchange consumers would defeat that purpose. Held: The subsidies are still valid.

That means we have a circuit split — for now. Whenever two federal appellate courts rule differently on the same issue, it’s almost a cinch that the Supreme Court will end up taking the case to resolve the ambiguity. It would be weird, after all, for a key federal law to be drastically different depending upon which state you’re in, and doubly weird in this case since the Fourth Circuit covers Maryland and Virginia, the two states that surround Washington. Geographically, D.C. is now a “no subsidies” island in the middle of a “subsidies” sea. That’s odd, and that’s why the Supreme will probably take the case. It’s also why the White House insists on an en banc rehearing on Halbig in the D.C. Circuit. If the full court overrules today’s decision, it would eliminate the circuit split and reduce a bit of pressure on the Supremes to take this case. But then, it takes just four votes of the Court to grant cert and agree to hear a case from a circuit court, which means that even if all five justices who votes to uphold the mandate two years ago would rather pass on this one, Scalia, Thomas, Alito, and Kennedy could force them to take it up by voting for cert. Will they do it? (Spoiler: Yes.)

Update: I didn’t see it until after I scheduled this post, but DrewM made the same points about the circuit split and granting cert here.