On this, the same day as the D.C. Circuit decision in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit took the opposite tack in King v. Burwell: finding that the provisions of Obamacare (Patient Protection and Affordable Care Act or PPACA), taken together, were ambiguous, and apply Chevron Step 2 deference to the agency’s interpretation, affirmed the district court decision.
For reasons explained below, we find that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’s determination, however, we uphold the rule as a permissible exercise of the agency’s discretion.
This intercircuit conflict is fairly clear and certainly affects a significant issue – increasing the likelihood (perhaps all but assuring) that the issue will soon reach the United States Supreme Court (SCOTUS). The Department of Justice (DOJ)’s Solicitor General has substantial incentive now to seek certiorari in Halbig – indeed, DOJ appears to have already signaled that it will seek some further review – and the plaintiffs in King have no reason not to pursue review by the High Court.