To put this another way, let’s consider exactly why the Halbig troofers think the court’s handiwork is too trivial to merit review. Essentially, the argument is that en banc rehearings are rare. White, in a passage quoted by Adler:
But if the D.C. Circuit rehears the case en banc, it would be a sharp break from history. The D.C. Circuit rehears virtually none of its cases. Each year the court’s three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.
The obvious responses being:
- So en banc rehearing are rare. What’s your point? It’s also rare for an appellate panel to find that a widely-discussed law passed less than 5 years unambiguously establishes an absurd outcome nobody on either side of the ideological spectrum identified at the time with the consequence that millions of people will be stripped of their health insurance. Nothing in the text of the Federal Rules of Appellate Procedure suggests that the “exceptional importance” standard can consider only academic or theoretical importance.
- Do you know what’s also extremely rare? The Supreme Court granting a writ of certiorari. So I’m sure that if the D.C. Circuit decides to hear the case en banc and vacates Halbig, White and Adler will agree that this “straightforward statutory interpretation case” is too trivial for the Supremes to bother with, particularly since there wouldn’t be a circuit split to resolve. Wait, stop laughing.
It’s tempting to say that all this nonsense shows that Adler et al see law as a game, divorced from any human consequences. But I think it’s even worse that that. As Paul has argued about Scalia and the death penalty, it’s more that they seem to revel in the horrible consequences; being willing to inflict avoidable suffering and death on people shows a real commitment to the rule of law. That the arguments presented by these would-be humble legal technicians sometimes reveal an almost comic degree of bad faith just adds to the effect. I mean, anyone can create bad consequences by applying a real legal principle, but making one up that you’ll abandon next week when it’s ceased to serve its purpose shows real commitment to whichever Solemn Legal Principle you’re advocating at the time.
…and, yes, as Hogan notes, here is the relevant section of Federal Rules of Appellate Procedure in full:
(1) The petition must begin with a statement that either:
(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or
(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.
So the relevant rules explicitly state that a circuit split resulting from a panel decision qualifies as an issue of “exceptional importance,” while also of course not foreclosing the consideration of policy impact when determining whether the standard is met either. Again, it’s bad faith all the way down.