... During Tuesday morning oral arguments in Halbig v. Sebelius, it was immediately clear that there will be a split decision of the three-member panel, with two of the judges staking out opposing views on the subsidy question. Judge Harry Edwards, an appointee of President Jimmy Carter, accused the defendants of making a politically motivated attack on the law. Judge Raymond Randolph, an appointee of President George H.W. Bush, said the text of the law and legislative history clearly blocks subsidies from federal-run exchanges.
The subsidy question is central to the future survival of the law. Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.
About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage. Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage. That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."
Of course, oral arguments aren't always a reliable indicator of how a judge will decide on a case. But it's safe to call Randolph's and Edwards's respective votes here, making Judge Howard Griffith as the panel's apparent swing vote. Griffith, a President George W. Bush appointee, was the only judge who didn't seem to have his mind already made up, and he challenged the Obama administration on some key points. ...
It will likely be at least another couple of months before the appeals court issues its decision. Even if the administration loses, it could then request that the entire circuit court hear the case, slowing things down. ...
Two other cases in Indiana and Oklahoma are still awaiting a decision in federal district court.
Here is the audio from the the Appelate court arguments.
