[Josh Blackman] Litigating Obamacare’s race to the Supreme Court in King v. Burwell and Halbig v. Burwell

Michael Carvin outside the Supreme Court on March 4, 2015. (Matt McClain/ The Washington Post)

On June 25, 2015, the Supreme Court ruled in King v. Burwell that customers who purchase insurance policies on the federal exchange could receive federal subsidies. Beyond the intricacies of statutory interpretation and administrative law, this case should be studied for the attorneys’ vigorous and effective appellate advocacy. Chapters 21 and 22 of “Unraveled” provide a step-by-step breakdown of how Mike Carvin of the Jones Day law firm faced off against the Justice Department. Although Carvin did not win the case, he did win the race to the court.

Speed Bump

In May 2013, Jacqueline Halbig and several other plaintiffs challenged the legality of the IRS rule that treated federal and state exchanges identically for purposes of subsidies. (I will spare you a rehash of the meaning of “established by the state.”) The case, backed by the Competitive Enterprise Institute, was brought by Carvin and his colleagues at Jones Day. Over the next four months, Carvin and the government filed a bevy of dueling motions, the former trying to rush the case, the latter trying to stall. Despite the pressing nature of the case, Judge Richard W. Roberts did not rule on a single motion.

On Sept. 10, Carvin filed a motion for a preliminary injunction and requested expedited hearing within 21 days, noting that the IRS rule would go into effect in less than three months. Then Carvin rolled the dice. He submitted a “suggestion of reassignment,” asking the court to transfer the case to another judge. This move was risky, as Roberts may have resented the suggestion that he was unfit for the case. Carvin, however, had legitimate grounds for the reassignment. Two months earlier, Roberts was elevated to become chief judge of the district, which entailed significant administrative duties. The overworked Roberts finally found a motion he wanted to rule on. (Roberts would resign from the bench under suspicious circumstances this March). Three days later, Halbig v. Sebelius was reassigned to Judge Paul L. Friedman, who promptly scheduled oral arguments for Oct. 22, 2013.

Carvin, however, was not content to let the entire case hinge on how the D.C. court would rule. Long before the case was reassigned, the attorneys began searching for a new set of plaintiffs to file an identical suit in the Eastern District of Virginia. There were several purposes for filing the parallel suit. First, the federal district court in Richmond is known as the Rocket Docket and would yield a decision quickly. Second, and more important, the challengers were already looking ahead to the Supreme Court. The Supreme Court is more likely to accept a case for review if the issue has divided the federal courts of appeals. This is known as a circuit split. By litigating parallel cases in D.C. and Virginia, Carvin speculated that if one ruled in his favor and one ruled against him, that would make the likelihood of Supreme Court review much greater. This stratagem proved to be prescient, as this is precisely what happened on July 22, 2014 — each court went in a different direction on the same day.

Both cases moved at an uncharacteristically brisk pace. During oral arguments, Carvin recalled that Friedman told everyone, “Look, I’m just the speed bump. You guys want to get out.” He was the first to decide. On Jan. 15, 2014, three months after the case was argued, the court ruled in favor of the government. One month later, Judge James R. Spencer in the Eastern District of Virginia ruled against the parallel case, King. With that, the challengers were off to the races. Spencer’s decision was appealed to the U.S. Court of Appeals for the 4th Circuit, also in Richmond. Friedman’s decision was appealed to the U.S. Court of Appeals for the D.C. Circuit, which promptly ordered expedited briefing and oral arguments.

Circuit Split

Coincidentally, oral arguments in Halbig v. Sebelius were held on March 25, 2014 — the same day the Supreme Court would hear arguments in Hobby Lobby v. Sebelius. As the proceeding began, D.C. Circuit Judge Thomas B. Griffith joked, “So, I guess this is the group that couldn’t get into First Street this morning.” The Supreme Court, located at 1 First St. NE, was about half a mile down Constitution Avenue. Joining Griffith on the bench were Judges Harry T. Edwards and A. Raymond Randolph. Two months later, on May 14, 2014, the 4th Circuit would hear arguments in King v. Sebelius.

Usually, circuit splits take months, if not years, to percolate through the federal courts. On July 24, 2014, within a span of several hours, a circuit split w