Well the court has agreed to this hearing, and they have stayed the decision of the original panel:
A vital part of the federal health care law will get a new review before the full bench of the U.S. Court of Appeals for the District of Columbia Circuit. In a two-page order released Thursday, a majority of the eleven-member court granted the Obama administration’s request to consider en banc the legality of subsidies being given to consumers to help them afford health care insurance, if they shop for it at a federal marketplace (“exchange”). Such exchanges exist in thirty-four states, and nearly five million consumers have already received subsidies.In the en banc hearing, unlike the original hearing, will not be stacked with partisan hacks, so it's pretty much certain that they rule as the 4th Circuit.
By granting further review of the controversy, the en banc court wiped out a three-judge panel’s two-to-one ruling on July 22 finding that such subsidies under the Affordable Care Act can only be provided to those who seek insurance on an exchange directly operated by a state government — a potentially crippling blow to the new law. Only sixteen states have set up exchanges.
By granting further review, the D.C. Circuit has raised the chances that the administration will win in that court, as it did previously in the U.S. Court of Appeals for the Fourth Circuit. If there is then no conflict among appeals courts on the question, that could reduce the chances that the Supreme Court would feel a need to step in. However, the issue is pending in other lower courts, so a conflict remains a possibility.
The question now is whether the Supreme Court is going to hear this case.
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