Halbig v. Burwell, en banc hearing, and the future of Obamacare

Buddy 2cents (an actual bona fide lawyer, but don't hold it against him) emails to point out this:

President Obama’s old Harvard Law professor, Laurence Tribe, said that he “wouldn’t bet the family farm” on Obamacare’s surviving the legal challenges to an IRS rule about who is eligible for subsidies that are currently working their way through the federal courts.

“I don’t have a crystal ball,” Tribe told the Fiscal Times. “But I wouldn’t bet the family farm on this coming out in a way that preserves Obamacare.”

Tribe, of course, is famously progressive in his views, and he's not exactly all sunshine and kittens about Obamacare's chances.  My thought was that the DC Court of Appeals is one of the most left leaning in the land, and an en banc hearing (where all the judges sit on the case, not just three) might give a different result.  I asked his opinion, and here is his opinion as a lawyer:

Moot point.  And if anything, I would put more money on the 4^th Circuit taking THAT case en banc.  The 4^th Circuit is more conservative than the DC Circuit is liberal.  Either way, there will be a split of the Circuits before too long.  The Supremes will end up deciding this one.  And I cannot see how this Court could do anything other than decide the same way as the DC Circuit did.  The statue is clear on its face.  Harry Reid’s office kept submitting the same language.  No one ever questioned it.  On top of that, as you may recall, SCOTUS only upheld HCA as an exercise of Congress’s power to tax.  The IRS has no power to interpretively impose new taxes.  They have NO power to tax.  Finally, revisionist history aside, the language of the statue very much fits Congress’s intent.  Let us not forget that, when the passed Obamacare, it was assumed by one and all that the States would jump right in and set up exchanges.  The Federal exchange was only envisioned as a stop gap back up plan.  Of course, politics, the economy and everything else intervened.  As a result, the obvious rush to participate has ended up with only 16 states setting up their own exchanges.  And Lord knows that this is not the first time that Congress wrote a law screwed up because they drew an erroneous conclusion resulting in a failed prediction.

So there you have it.  Things are not looking good for Obamacare at all.  It's not dead, but it looks like it's coughing up blood.