As was well documented today, the DC Circuit in Halbig v. Burwell and the Fourth Circuit in King v. Burwell issued conflicting opinions this morning on the IRS regulations authorizing tax credits in federal exchanges under section 36B of the ACA. The DC Circuit held the regulations were invalid and only state exchanges could receive the credits, while the Fourth Circuit said the Service had a reasonable interpretation of the ambiguous statute and subsidies were available for folks who signed up through the federal exchange.
Les covered both of these case before, when each was in the lower court. The Halbig write up can be found here, and the King write up can be found here. We will have some in depth coverage and thoughts on the holdings later this week. Stay tuned!
Although I indicate in my title, this is heading to the Supreme Court, it is possible that en banc review will be requested, putting off what I suspect is the inevitable hard look from John Roberts and Co.
About Stephen Olsen
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