Patterico's Pontifications

9/4/2014

Halbig Review Granted

Filed under: General — Dana @ 5:03 pm

[guest post by Dana]

Today a D.C. Circuit Court granted a review of Halbig v. Burwell . Patterico has posted extensively on this and discussed the likelihood of this ruling as well.

The White House reacts:

“The full D.C. Circuit will hear Halbig, an important and welcome next step in the process of the Halbig case,” a senior Obama administration official told Business Insider.

“The 2-1 decision of the panel was wrong, and we are confident that the full court will recognize that the text of the statute, the clear intent of Congress, and common sense all demonstrate that premium tax credits are available to Americans in every state – as a unanimous panel of the Fourth Circuit has already concluded.”

Hopefully, as time permits, Patterico will stop by and add commentary. In the meantime, see the excellent Halbig In A Nutshell for a refresher.

–Dana

31 Responses to “Halbig Review Granted”

  1. Hello.

    Dana (4dbf62)

  2. This is waaaaaaaay out of the norm for them to hear this en band.

    JD (dc108d)

  3. Full D.C. Circuit, full of Obama appointees due to Reid’s use of the nuclear option as Beldar pointed out in the Kimberlin thread. I wonder how it will be decided.

    nk (dbc370)

  4. Is it likely that the Supreme Court will take it, since we assume how the Obama court will rule on an Obama topic?

    MD in Philly (f9371b)

  5. A dissent increases the chances of en banc review, JD. Coupled with a conflicting opinion from another circuit …? They can’t be faulted for that. The lineup, when it’s decided, will be instructive. Not that I was not going to vote for Oberweiss, anyway. ;)

    nk (dbc370)

  6. One reason a circuit will grant en banc review to review a three-panel decision that conflicts with another circuit is to save the Supreme Court the trouble, MD. But it only takes four SCOTUS justices to grant cert, so who knows?

    nk (dbc370)

  7. “This is waaaaaaaay out of the norm for them to hear this en band.”

    What’s the “norm” for en banc?

    ghostofkeynes (1467a4)

  8. Nk – their own standards don’t mention dissents. Their standards are if a precedent was overturned, or a constitutional issue is at stake, neither is the case with this case. They hear less than 2 a year en banc.

    JD (dc108d)

  9. “Ghost”s act is cute, isn’t it?

    JD (dc108d)

  10. Should be easy to figure out, if this is way out of it.

    ghostofkeynes (1467a4)

  11. http://www.law.cornell.edu/rules/frap/rule_35

    This case does not fit in their own framework.

    JD (dc108d)

  12. Imdw is never not mendoucheous.

    JD (dc108d)

  13. It still falls within the rules, JD. http://www.law.cornell.edu/rules/frap/rule_35 Certainly with this provision:

    (1) The petition must begin with a statement that either:

    (A) or

    (B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.

    nk (dbc370)

  14. Let me guess, you read a Jonathan Adler piece that ommitted this part?

    “for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.”

    ghostofkeynes (1467a4)

  15. I linked to their standards above, stalker. There are no exceptional weighty issues involved. Did Congress authorize something in the text of the law. No constitutional issue there. The law says it, or it doesn’t.

    JD (dc108d)

  16. So let’s give a bit more of the story. When the 4th circuit decision goes the other way, that means “the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.” Sorry bud. Whoever told you otherwise is an ideologue selling you what you want to hear.

    ghostofkeynes (1467a4)

  17. (a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

    (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or

    (2) the proceeding involves a question of exceptional importance.

    The part imdw is quoting is from the section outlining what must be included in the petition, not the standards for what is to be heard.

    JD (dc108d)

  18. You are not my buddy, or my pal. And for your info, I read this

    http://m.us.wsj.com/articles/adam-j-white-no-need-for-a-halbig-rehearing-1407195952?mobile=y

    JD (dc108d)

  19. What’s an example of a “question of exceptional importance”? Per the rule “if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.”

    Seriously guy. Where did you get the idea to look up FRAP 35 to support your position? Whoever sent you there as the answer is selling you a bill of goods.

    ghostofkeynes (1467a4)

  20. Do you not read?

    JD (dc108d)

  21. I posted that as the same time as you!

    ghostofkeynes (1467a4)

  22. Add ghostofkeynes nops and a couple others to an ever expanding list of names and IO’s that this sick stalker has used.

    JD (dc108d)

  23. JD (dc108d) — 9/4/2014 @ 7:01 pm

    There are no exceptional weighty issues involved. Did Congress authorize something in the text of the law. No constitutional issue there. The law says it, or it doesn’t.

    It is not important because it affects a lot of other law, but because this is apretty important law.

    A “question of exceptional importance” isn’t really a legal question, it’s a question which affects very many people, and whether Obamacare, or an important part of this law, stands or falls this certainly does. Millions of Americans would be affected by whether or not theer is a tax credit here..

    The same thing could be if the president did something and the question was: Does he have a right to?

    Sammy Finkelman (fb61e5)

  24. 2) the proceeding involves a question of exceptional importance.

    Is that, where also the decision of the 3 judges conflicts with that of another circuit?

    Sammy Finkelman (fb61e5)

  25. A bit late, but:
    Pardonnez-moi, je jouais au golf:

    33 Responses to “Halbig in a Nutshell”
    What does “The State” mean?

    Leviticus (c3237f) — 7/8/2014 @ 7:54 am

    C’est moi, bien sûr.

    Obama, Teh One... (225d0d)

  26. let’s be honest: the reason for the review is because the regime doesn’t like the outcome.

    had it gone their way and the other party appealed, there would have been cries of outrage from the usual idiotic suspects on the left that “it’s the law”, etc, ad nauseam, to infinity & beyond.

    only when things are decided their way, or an election goes their way is everything locked in stone.

    lose the vote? demand recount after recount until enough fraudulent votes are “found”, then suddenly the “people have spoken”.

    the voters pass a perfectly legal proposition that the left doesn’t like, then it’s off to a pet judge who just happens to randomly get the case, who then issues a preliminary injunction after the most cursory of hearings, and as often happens here in #Failifornia, the libtard fascist government declines to further defend or appeal, and the court refuses to let anyone else step in, so that, having lost the vote, the fascists overturn the voice of the people through corruption, misfeasance, malfeasance, and nonfeasance.

    who needs to travel the world? we’re already in a third world country.

    redc1c4 (abd49e)

  27. note: better practice is to not use the Federal Rules of Appellate Procedure (FRAP, because someone already used it) when considering the rules of a known court, but instead use the local rules ( http://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-%20Circuit%20Rules/$FILE/Rules%20December%202013%20LINKS%20and%20BOOKMARKS%20final2%20.pdf for the DC Circuit). In the case of the DC Circuit and Rule 35 the difference between the local rules and the FRAP is minimal, but it is a bad habit to get into, local rules vary from the FRAP (see Rule 47 of the FRAP for the Rule about local rules:)).

    max (4fdf98)

  28. Sammy – every law has the potential to effect a great number of people. That is not the standard.

    JD (dc108d)

  29. if they decided to rubberstamp their diktat, I hope they come up with a better argument, than the ‘pizza’ analogy

    narciso (ee1f88)

  30. I hate to be a dissenter, but it seems to me that this is a question of exceptional importance.

    Which is not to say the legal issue was decided wrongly by the panel (it wasn’t) or that the en banc court won’t issue a poorly reasoned and political decision (they almost certainly will). It’s just to say that I don’t think it’s a stretch to take this up en banc — just like I think it would not be a stretch for the Supreme Court to take this up even without a circuit split. It’s an important case.

    Patterico (9c670f)


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