A bearded, be speckled avid gardener and father of three grown children is the relatively obscure figure behind the litigation of Halbig v. BurwellThe attorney, Mr. Christina, with the law firm Ogletree Deakins was the catalyst behind the lawsuit that latched onto the wording which caused the DC Circuit Court of Appeals to rule that only state funded exchanges could have subsidies.

In another ruling in the Fourth Circuit Court of Appeals, King v. Burwell, this appeals court ruled that the subsidies are indeed legal for people purchasing insurance on the federal exchange and are not limited to state run exchanges.

Although the wording in the Patient Protection and Affordable Care Act explicitly says only state run exchange participants can receive federal tax credits for their health insurance, we now see two different opinions (one for and one against) by the federal appeals courts.

Since the Obama administration has requested an en banc review by the DC Circuit (meaning all 11 members would have to rule on this case and its wording vs. the 3 who originally ruled), the Obama administration may find itself going back to the Supreme Court as a result of these two opposing decisions and the en banc ruling request.  The losing lead litigator in the 4th Circuit decision, Michael Garvin of Jones Day can now petition the Supreme Court for an expedited appeal which would throw the whole case back to the Supremes for a second ruling, meaning Chief Justice Roberts would have a second bite at the apple on whether or not he will uphold ObamaCare again as he did in his first ruling.

While all of this makes for great theater and speculation, it leaves the insurance industry in turmoil and one wonders what would happen if the Supreme Court ruled like the DC Circuit regarding the language striking down subsidies on the federal exchange.

Just when you thought it was safe to go back in the water again, it appears the sharks could be circling for one last bite that could be fatal to ObamaCare.

Cary Hall,

America’s Healthcare Advocate