Obamas Law Professor: I Wouldnt Bet on Obamacare Surviving Next Legal Challenge

Hoosier8 · Jul 11, 2014

This will be interesting to follow. Depending how this goes, it will be awhile.

I also would not guess which way this will go. Your guess is as good as anyone's so let us know what you think will happen.

President Obamas old Harvard Law professor, Laurence Tribe, said that he wouldnt bet the family farm on Obamacares 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 dont have a crystal ball, Tribe told the Fiscal Times. But I wouldnt bet the family farm on this coming out in a way that preserves Obamacare.

The laws latest legal problem is that, as written, people who enroll in Obamacare through the federal exchange arent eligible for subsidies. The text of the law only provides subsidies for people enrolled through an Exchange established by the State, according to the text of the Affordable Care Act. Only 16 states decided to establish the exchanges.

The IRS issued a regulation expanding the pool of enrollees who qualify for the subsidies. Opponents of the law, such as the Cato Institutes Michael Cannon and Jonathan Adler, argue that the IRS does not have the authority to make that change. (Halbig v. Burwell, one of the lawsuits making this argument, is currently pending before the D.C. Circuit Court; the loser will likely appeal the decision to the Supreme Court.)

There are specific rules about when and how the IRS can deviate from the plain language of a statute, Cannon explained to National Review Online, arguing that the subsidies regulation fails to comply with those rules.

The IRS can deviate from absurd laws, in theory, but the subsidies language is not absurd. It might be stupid, but thats not the test for absurdity, Cannon says. Similarly, the IRS can deviate in the case of scriveners errors typos, basically but this is not a typo, Cannon says, because the language was written into repeated drafts of the law.

They not only keep that language in there, but they even inserted it, this same phrase again, right before passage while the bill was in [Senate Majority Leader] Harry Reids office, Cannon says. So, its not a scriveners error, either.

Finally, the IRS could fill in ambiguous gaps in a law. The problem for the IRS, though, is that the subsidies language is not ambiguous. Even Tribe acknowledged that the language is clear, according to the Fiscal Times.

Yet in drafting the law, Tribe said the administration assumed that state exchanges would be the norm and federal exchanges would be a marginal, fallback position though it didnt work out that way for a plethora of legal, administrative and political reasons, the Fiscal Times writes.

Tribe suggested that the case will, like the individual mandate challenge before it, hinge on Chief Justice John Robertss decision. He would be asking himself the hard question: Is it so clear under existing law that it has to be construed in this literal and somewhat bizarre way . . . that subsidies or tax credits cannot be provided on the federal exchanges, or is it sufficiently ambiguous that it gives me the necessary legal wiggle room [to side with the administration once again?] Tribe said.

Forbes contributor Jeffrey Dorman notes that a recent ruling in a case involving the Environmental Protection Agency could make it harder for Roberts to conclude that he has that wiggle room.

The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the laws administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice, Justice Antonin Scalia wrote in an opinion that Roberts joined in full.

Cannon believes Roberts is unlikely to go through the legal gymnastics used when he upheld the individual mandate as an exercise of Congresss taxing power, even though it was written into law as an unconstitutional penalty.

That was a question of congressional power under the Constitution, and this is a question of IRS power under the ACA and Supreme Court precedents, Cannon says. The IRS has absolutely zero independent power to tax and borrow and spend. It can only do that which is delegated to it by Congress.

And he has no patience with Tribes suggestion that it would be bizarre for Roberts to conclude that only state-based exchanges can receive subsidies.

Hes obviously trying to coach the Supreme Court on how to rule for the government here, Cannon counters. Hes also either ignoring or not aware of the legislative history showing that Congress was considering all sorts of proposals that would withhold subsidies from states that didnt establish exchanges or do other things.

It is clear that he has not researched the legislative history, because there is nothing bizarre about it, Cannon says.
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Obamas Law Professor: I Wouldnt Bet on Obamacare Surviving Next Legal Challenge

Hoosier8 Well-Known Member Past Donor

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Obamas Law Professor: I Wouldnt Bet on Obamacare Surviving Next Legal Challenge

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Obamas Law Professor: I Wouldnt Bet on Obamacare Surviving Next Legal Challenge