Skip to comments.Obama's Law Professor: ‘I Wouldn’t Bet’ on Obamacare Surviving the Next Legal Challenge
Posted on 07/11/2014 7:34:36 PM PDT by SeekAndFind
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.
(Excerpt) Read more at nationalreview.com ...
Isnt this the bush vs gore attorney from 2000 election?
Could be wrong.
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.
Itd 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 states exchange instead of the state itself.
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 ).
Being over-ruled on the subsidies would kill Obamacare.
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.
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.
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
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.
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.
Meanwhile from one of Ted Cruz’s Harvard Law professors, Alan Dershowitz: “Cruz was off-the-charts brilliant.”
Understood, but when a law like the ACA is specifically making distinctions between “Federal” and “State” Exchanges?
That should not fly here
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.
Why use Federal or State at all? Why would legislation refer to any government body if all exchanges were to be treated the same?
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.
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.
Nathanbedford a wealth of information as usual always great to hear
Possible interest given your earlier thoughts:
One Stone, Two Powers: How Chief Justice Roberts Saved America
Ted Olson’s wife, Barbara, died in the plane that flew into the Pentagon on 9/11.
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.
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.
“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?