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Obama's Law Professor: ‘I Wouldn’t Bet’ on Obamacare Surviving the Next Legal Challenge
National Review ^ | 07/11/2014 | Joel Gehrke

Posted on 07/11/2014 7:34:36 PM PDT by SeekAndFind

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.”

The law’s latest legal problem is that, as written, people who enroll in Obamacare through the federal exchange aren’t 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 Institute’s 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.

(Excerpt) Read more at nationalreview.com ...


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: lawrencetribe; lawsuit; obamacare

1 posted on 07/11/2014 7:34:36 PM PDT by SeekAndFind
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To: SeekAndFind

Isnt this the bush vs gore attorney from 2000 election?
Could be wrong.


2 posted on 07/11/2014 7:35:58 PM PDT by Donnafrflorida (Thru HnodredscottIM all things are possible.)
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To: SeekAndFind

As Hotair explains:

The issue, remember, is one line in the ObamaCare statute that says subsidies shall be available only to consumers who buy their new health insurance on “an Exchange established by the State.”

Thirty-four states refused to build their own exchanges, so the federal government went ahead and built Healthcare.gov for people in those states as a substitute.

Question: Is that “an Exchange established by the State”? If not, a lot of people who were counting on subsidies to help pay for their insurance are about to have the rug pulled out from under them.

It’d be weird to pass a law called the “Affordable Care Act,” that disallows affordable coverage for tens of millions of people just because it was the feds who set up their state’s exchange instead of the state itself.


3 posted on 07/11/2014 7:36:22 PM PDT by SeekAndFind
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To: Donnafrflorida

RE: Isnt this the bush vs gore attorney from 2000 election?

Yes he is. He lost that one to Ted Olson ( who for some strange reason, is now obsessed with making gay marriage legal in the USA ).


4 posted on 07/11/2014 7:37:28 PM PDT by SeekAndFind
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To: SeekAndFind
I'm getting very cynical regarding the future of this country, I wouldn't bet against Obama.
5 posted on 07/11/2014 7:44:32 PM PDT by Huskrrrr
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To: SeekAndFind; All
Since the states have never delegated to the feds, expressly via the Constitution, the specific power to regulate, tax and spend for intrastate healthcare purposes, Obamacare Democratcare shouldn't have survived its first legal challenge.
6 posted on 07/11/2014 7:55:06 PM PDT by Amendment10
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To: SeekAndFind

Being over-ruled on the subsidies would kill Obamacare.


7 posted on 07/11/2014 7:58:09 PM PDT by sickoflibs (King Obama : 'The debate is over. The time for talk is over. Just follow my commands you serfs""')
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To: SeekAndFind

Libs are tap dancing around this one by calling the Federal government the Orwellian “State.” However, the Feds never refer to themselves as the “state.”
You lose Obamaphiles.


8 posted on 07/11/2014 8:01:40 PM PDT by Sasparilla
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To: SeekAndFind

Yeah ted married to amazing barbara. She is rolling over in her grave. Oh i forgot they incinerated her. My stomach just turned. I will never forget 911.


9 posted on 07/11/2014 8:04:18 PM PDT by Donnafrflorida (Thru HnodredscottIM all things are possible.)
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To: SeekAndFind

The thing about Lawrence Tribe is (notwithstanding his generally quite leftist POV) he is a very excellent lawyer ... and he usually speaks quite honestly about issues (even when he’s on the other side). Meaning... this is a significant opinion... not just another article to blow away


10 posted on 07/11/2014 8:13:54 PM PDT by faithhopecharity ((Brilliant, Profound Tag Line Goes Here, just as soon as I can think of one..))
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To: SeekAndFind

Tribe’s pretty smart, but Jackass John Roberts already rewrote the law once to make it fit (changed a penalty into a tax). He can do it again.


11 posted on 07/11/2014 8:14:36 PM PDT by budj (beam me up, scotty...)
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To: All

isn’t the term “the state” customarily is used to refer to any part of government, eg., separation of church and state, state sponsored terrorism, enemy of the state? those terms refer to a government on a national level.


12 posted on 07/11/2014 8:18:07 PM PDT by willywill
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To: SeekAndFind

Meanwhile from one of Ted Cruz’s Harvard Law professors, Alan Dershowitz: “Cruz was off-the-charts brilliant.”


13 posted on 07/11/2014 8:21:12 PM PDT by 2ndDivisionVet (The most dangerous man to any government is the man who is able to think things out for himself.)
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To: willywill

Understood, but when a law like the ACA is specifically making distinctions between “Federal” and “State” Exchanges?

That should not fly here


14 posted on 07/11/2014 8:39:06 PM PDT by Kansas58
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To: SeekAndFind
... as written, people who enroll in Obamacare through the federal exchange aren’t eligible for subsidies...not to worry - Roberts will simply rewrite the law the way he did the original ACA to fit whatever he needs to to meet his current legal standards....
15 posted on 07/11/2014 8:55:25 PM PDT by Intolerant in NJ
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To: Kansas58

ok, so does the law have that legalize, something like, “the state government exchanges, hereby referred to as the state”? in that case, I would then think the term would be referring to the individual states. lets hope.


16 posted on 07/11/2014 8:55:27 PM PDT by willywill
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To: willywill

Why use Federal or State at all? Why would legislation refer to any government body if all exchanges were to be treated the same?


17 posted on 07/11/2014 9:09:53 PM PDT by Kansas58
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To: SeekAndFind

10’s of million of people lives upended and for what!
So very few can make more millions and others lord it over the rest of us.

I know what I would like to do to all those involved but the NSA has emailed me saying they have to install another hard drive because my file is already too big.


18 posted on 07/11/2014 10:14:03 PM PDT by minnesota_bound
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To: faithhopecharity
Laurence Tribe emerges periodically from Harvard Law School to do more than plead cases before high courts, he is presented to put an erudite face on raw liberalism. He has borked judge Bork and he has borked Clarence Thomas. He has been on the left side of every issue since he got out of law school. He is an entirely inbred product of Harvard, having taken three degrees from undergraduate studies through law school there. He is a bloodthirsty abortionist.

When the time comes, he will be on the side of upholding Obamacare and in doing so he will lend the most attenuated findings of legislative intent a patina of reasonableness. He is an advocate to be feared because he carries an aura of fairness and erudition but he is in truth an ideologue posing as a detached professor.


19 posted on 07/11/2014 10:15:29 PM PDT by nathanbedford ("Attack, repeat, attack!" Bull Halsey)
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To: nathanbedford

Nathanbedford a wealth of information as usual always great to hear
from you!!!!!!


20 posted on 07/11/2014 10:19:59 PM PDT by Kit cat (OBummer must go)
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To: Talisker

Possible interest given your earlier thoughts:

One Stone, Two Powers: How Chief Justice Roberts Saved America
http://www.freerepublic.com/focus/f-news/2903818/posts


21 posted on 07/11/2014 10:27:21 PM PDT by Gene Eric (Don't be a statist!)
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To: SeekAndFind

Ted Olson’s wife, Barbara, died in the plane that flew into the Pentagon on 9/11.


22 posted on 07/12/2014 5:01:02 AM PDT by SC_Pete
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To: Donnafrflorida

Yes, fired after the first defeat in the Supreme Court, replaced by David Boyes. But I’m wondering what the big deal is; obama can solve the problem he created by issuing another EO or reg to write the law anew just like all the other rewrites. In any event, Reid has his back if the SCOTUS rules against him.


23 posted on 07/12/2014 10:19:04 AM PDT by DPMD
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To: Gene Eric

Thanks for the ping.

Everyone’s still looking for flaws in the law, instead of at its limited applicability. Not that that’s a bad thing, since it’s full of giant holes. But so far the courts seem to be ignoring severability and just finding ways to implement it anyway.

Roberts directed his attention to limited applicability. When the Chief Justice indicates a path, it’s usually for a good reason. But we’ll see. Maybe it will fall for other reasons.


24 posted on 07/12/2014 10:30:22 AM PDT by Talisker (One who commands, must obey.)
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To: Kansas58

“Why use Federal or State at all? Why would legislation refer to any government body if all exchanges were to be treated the same?”

Ha! That is the crux of the matter. Let’s see if these judges rule on law or politics?


25 posted on 07/12/2014 3:12:41 PM PDT by yorkiemom ( "...if fascism ever comes to America, it will come in the name of liberalism." - Ronald Reagan)
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