Yesterday, the plaintiffs in King v. Burwell who are challenging the lawfulness of an IRS rule purporting to authorize tax credits in federally established health insurance exchanges filed a petition for certiorari with the Supreme Court, seeking review of the U.S. Court of Appeals for the Fourth Circuit’s decision in favor of the government. SCOTUSBlog has this report.
Today, the federal government filed a petition for en banc rehearing in Halbig v. Burwell in the U.S. Court of Appeals for the D.C. Circuit, hoping to overturn the three-judge panel’s decision invalidating the IRS rule. This petition may have been filed a day later, but it is likely to be acted upon before the Supreme Court considers the King cert petition this fall. [UPDATE: The court has asked the plaintiffs for a response.]
Meanwhile, in Oklahoma, state Attorney General Scott Pruitt filed this 28j motion on Jonathan Gruber’s repeated January 2012 comments with the federal district court in support of its pending challenge to the same IRS rule. As this filing points out, while these remarks do not establish legislative intent with regard to the PPACA, they do undermine some of the arguments that have been made by the government and its amici.
In other PPACA litigation news, the state of West Virginia has filed suit against the federal government to challenge the President’s “if you like it, you can keep it” fix. This executive action was almost certainly illegal, but it’s not clear whether anyone has standing to challenge it. In this regard, West Virginia’s arguments are interesting. [Here are a press release and the complaint.]
Also, the House has moved ahead with the resolution authorizing its suit against the President for the repeated employer mandate delays. In the WSJ, lawsuit architects David Rivkin and Elizabeth Price Foley made their case for the suit. (See also here.)
Finally, on Tuesday, the U.S. Court of Appeals rejected an origination clause challenge to the PPACA as a whole. No surprise there.
Time permitting, I’ll have additional posts on some or all of these developments over the weekend.