Obama’s Law Professor: ‘I Wouldn’t Bet’ on Obamacare Surviving Next Legal Challenge

[Locutus]

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.

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


more


Obama's Law Professor: 'I Wouldn't Bet' on Obamacare Surviving Next Legal Challenge | National Review Online

 

[BaalsTears]

The limitation of the ACA language to "state exchanges" was intentional. That's what Congress intended. The limitation was an attempt by the Democratic controlled Congress to put pressure on Republican governors to force them to establish state exchanges or take blame for the lack of subsidized coverage in their states. This wasn't a mistake by the Democrats.

 

[captain morgan]

The limitation of the ACA language to "state exchanges" was intentional. That's what Congress intended. The limitation was an attempt by the Democratic controlled Congress to put pressure on Republican governors to force them to establish state exchanges or take blame for the lack of subsidized coverage in their states. This wasn't a mistake by the Democrats.

Apparently it was a mistake.

Doesn't appear that the individual States are bowing to the pressure.. The question is what kind of effect will this have on the Fed legislation in relation to the State laws

 

[BaalsTears]

Apparently it was a mistake.

Doesn't appear that the individual States are bowing to the pressure.. The question is what kind of effect will this have on the Fed legislation in relation to the State laws

It was a misjudgment by the Democrats about how Republican governors would react. But it wasn't a matter of negligence in drafting the legislation. This is what the Democrats intended.

There are now different Court of Appeals decisions on the issue of subsidies in the federal exchange. Obama will either seek an En Banc review by the entire DC Circuit or he will appeal the DC Circuit's adverse decision. I think the US Supreme Court will have to resolve the matter. That probably means a 4-4 split with Chief Justice Roberts casting the deciding vote. But it seems like Obama has some dirt on Roberts with which to blackmail Roberts in to casting a vote Obama likes.

 

[captain morgan]

Should be interesting... That said, I'd wager that the Dems never counted on there being this kind of friction. If that is the case, are they prepared for the possible scenarios that can arise.

All questions... Answers to come as events unfold

 

[BaalsTears]

Should be interesting... That said, I'd wager that the Dems never counted on there being this kind of friction. If that is the case, are they prepared for the possible scenarios that can arise.

All questions... Answers to come as events unfold

The Democrats play a very long game. They can anticipate two steps ahead, but not three. In this case they didn't anticipate the fact that most Republican governors wouldn't bend to the political pressure because the Republican base is on the war path.

 

[Tecumsehsbones]

Works for me. I'd be delighted to see Obamacare go down, and the health-care question revert to where it should be. . . the states.

 

[gopher]

Social Security (FICA) is still litigated in some form or another after all these years. Yet, contrary to certain delusional pundits of the far right, it is still the law of the land. It's a good bet the law will be around for a long time to come. Ditto for ACA.