In two separate rulings today, Obamacare subsidies were both upheld in the Fourth Circuit Court of Appeals and struck down in the D.C. Circuit Court of Appeals. Both cases deal with the textualism versus intent debate—whether judges can claim to divine the intent of legislators when ruling on a law, or have to read only the text in front of them.

In the D.C. ruling, the court agreed in a two-to-one decision that the text of the Obamacare law was to be interpreted as it stood. This means that subsidies in the federal exchanges are supposed to stop, but reports have since surfaced that the president is intending to ignore this ruling until there is further deliberation.

The ruling in the Fourth Circuit Court of Appeals was the complete opposite. The decision according to Legal Insurrection states the following:

The plaintiffs-appellants bring this suit challenging the validity of an Internal Revenue Service (“IRS”) final rule implementing the premium tax credit provision of the Patient Protection and Affordable Care Act (the “ACA” or “Act”). The final rule interprets the ACA as authorizing the IRS to grant tax credits to individuals who purchase health insurance on both state-run insurance “Exchanges” and federally-facilitated “Exchanges” created and operated by the Department of Health and Human Services (“HHS”). The plaintiffs contend that the IRS’s interpretation is contrary to the language of the statute, which, they assert, authorizes tax credits only for individuals who purchase insurance on state-run Exchanges. 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. We thus affirm the judgment of the district court. (Emphasis added.)

However, the president has asked for an en banc ruling for the D.C. Circuit Court decision, which will mean that all thirteen judges on that bench will consider the case. If they agree to take it up, the result might be very different, as eight of the thirteen judges were appointed by Democrats. If en banc does overturn the decision, it gets rid of the split and weakens the case for another review by the Supreme Court, though it does not rule it out altogether. 

Could we all be waiting on our toes like in 2012 all over again? Time will tell.