Abbe Gluck, a professor at Yale Law School, is the good cop in this write-up of liberal efforts to persuade the Supreme Court to leave the Obama administration’s illegal health-care subsidies in place, holding out hope because “the chief justice has already shown that he’s able to rise above politics.”
Neera Tanden, president of the Center for American Progress, is the bad cop, warning that the justices “will be held accountable” if they rule against the administration.
New legal arguments are also being deployed. Sahil Kapur reports:
One way for the Obama administration to appeal to Roberts is to offer him a way to uphold the subsidies while advancing long-term conservative legal goals, as he did in 2012 by making the Medicaid expansion optional.
That’s what its lawyers are effectively doing when they contend that it would violate states’ rights to deny subsidies without a clear warning that they were contingent on setting up state exchanges. The federalism argument is a late addition to the strategy — the government didn’t make it at the trial court level.
The plaintiffs’ reply brief, just filed, answers this argument, noting that the text of the statute withheld all Medicaid funds from states that refused to expand the program:
Nor was clearer “notice” needed. (Govt.Br.39- 41.) The ACA’s Medicaid “deal” was implemented by innocuously adding a subclause VIII to 42 U.S.C. § 1396a(a)(10)(i), enumerating Medicaid’s eligibility criteria—not by express threats. ACA § 2001(a). Section 36B is certainly no less clear (and Congress could hardly have expected that states would ignore statutory text but somehow be alerted by “notice” buried in legislative history).
I’m no lawyer, but the multiplication of arguments by the administration does not seem to me to be a sign of confidence.