"And why am I not particularly worried? The government can ask for the entire active DC Court of Appeals to hear the case as a body. En Banc review is used for high profile cases or where the vast majority of the circuit thinks their colleagues fucked up big time. The DC Court of Appeals currently has a 7-4 Democratic appointee majority and they'll apply normal administrative law procedures to this case and tell their colleagues that they are fucking hacks in appropriately judgy language. Assuming the en banc review goes the way I think it does, all circuits will then agree that the IRS has the right to interpret ambiguous law as it sees fit as long as the interpretation passes a rationale basis/giggle test . If there is an all circuit agreement, the Supreme will have a real hard time taking the case to gut Red State subsidies. And now let's talk about the asshole of the day. The two "intellectual fathers" of the anti-Obamacare lawsuits are Michael Cannon and Jonathan Adler. Their major brief on the Halbig case contains a massive factual error that invalidates their argument. Balkinization explains: In a recent blog post, Cato scholar Michael Cannon admitted that he and his colleague, Case Western University professor Jonathan Adler, had made a mistake in an amicus brief they submitted to the courts in the Halbig and King cases. We all make mistakes—indeed Michael has claimed that I have made many mistakes in my analysis of these cases, some of which were indeed mistakes. This mistake is important, however, because it goes to the central argument that he and Jonathan have relied on in their brief…."
Typos courtesy of my iPhone