President Barack H. Obama’s signature initiative in having passed and signing an Act for the affordable healthcare of all Americans,[1] has suffered under a constant onslaught of challenges. This has ranged from initial and ongoing opposition resistance from the Republican party,[2] through snafus in the setup for and registration under, the Act,[3] to court challenges on several fronts.[4]



As the PPACA (more commonly known as the Affordable Care Act or “ACA”) is a federal law, those court challenges must be brought in the Federal District Courts of the various states. Appeal from the ruling of one of the 94 District Courts lies to a Circuit Court of Appeal, of which there are thirteen – twelve regional, and one for the Federal Circuit.[5] This usually ends a matter, as there is no automatic right to be heard at the next level of appeal, which is the United States Supreme Court (U.S.S.C.). The reason for that, is because the U.S.S.C. is not obligated to grant Certiorari (hear a case), except in special instances. One of those instances is a situation where the Circuit Courts are split on a key point.  This just happened in the case of the PPACA/ACA (the Act), involving the D.C. Circuit, [6] and the Fourth Circuit.[7] Hence, Certiorari from the U.S.S.C. may well be in sight.


The question arises with regard to interaction between the Act, and the United States Internal Revenue Code (IRC), at Section 36B of the latter. At Sections 1311(b)(1) and 1321(c)(1) of Act, both the states and the federal government, respectively, are enabled to establish healthcare Exchanges. As a consequence of this apparent dual mandate, the IRC has permitted subsidy reimbursement (as a tax credit) for healthcare coverage obtained through either one of the federal or the state Exchanges, under IRC Section 36B.[8]


D.C. Circuit (Halbig):[9] Not all states have established Exchanges, but the District of Columbia has. The case concluded at the Circuit Court that only healthcare coverage purchases made through state healthcare Exchanges were eligible for reimbursement under IRC Section 36B. Hence, it follows that some or all of the subsidies for federal plans, may well be illegal within the District of Columbia.


Fourth Circuit (King):[10] This case, however, concluded the Circuit Court that only healthcare coverage purchase made through federal healthcare Exchanges, were eligible for reimbursement under IRC Section 36B. Hence, it follows that some or all of the subsidies for state plans, may well be illegal in states covered by that Circuit.




Once again, we must wait to see which case gets the Act back into the hands of the Supreme Court Justices, and then digest the result. It seems that this Act, promises one or more scenes to come!





Ekundayo George is a sociologist and a lawyer. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other Services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.


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[1] United States Government. The Patient Protection and Affordable Care Act (PPACA), PL. 111-148, effective March 23, 2013.  This Act is sometimes also known as “Obamacare”, “The Affordable Care Act”, or simply, “ACA”.  Published on Visited July 31, 2014. Online: ><

[2] Sarah Kliff. Why have Republicans voted 30 times to repeal Obamacare? To increase uncertainty. Published on, July 9, 2012. Online: ><

[3] CBS News/Associated Press. Nearly 500K sign up during messy rollout of ACA, WH says. Published on, October 20, 2013. Online: ><

[4] See e.g. National Women’s Law Center (NWLC). Status of the Lawsuits Challenging the Affordable Care Act’s Birth Control Coverage Benefit. Published on Visited July 31, 2014. Online: ><

[5] See generally. United States Courts. Courts of Appeals. Published on Visited July 31, 2014. Online: ><

[6] Halbig v. Burwell, 14-5018, opinion of July 22, 2014. >$file/14-5018-1503850.pdf<

[7] King v. Burwell, 14-1158, opinion of July 22, 2014. ><

[8] 26 U.S. Code § 36B – Refundable credit for coverage under a qualified health plan.

(a) In general

In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle for any taxable year an amount equal to the premium assistance credit amount of the taxpayer for the taxable year.

(b) Premium assistance credit amount

For purposes of this section—

(1) In general

The term “premium assistance credit amount” means, with respect to any taxable year, the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year. (…)

Published on Cornell legal Information Institute (LII). Visited July 31, 2014. Online: ><

[9] Supra note 6.

[10] Supra note 7.

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