The Corner

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

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.

“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 Reid’s office,” Cannon says. “So, it’s not a scrivener’s 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 didn’t 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 Roberts’s 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 law’s 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 Congress’s 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 Tribe’s suggestion that it would be “bizarre” for Roberts to conclude that only state-based exchanges can receive subsidies.

“He’s obviously trying to coach the Supreme Court on how to rule for the government here,” Cannon counters. “He’s 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 didn’t 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.

Most Popular

Elections

Kamala Harris Runs for Queen

I’m going to let you in on a secret about the 2020 presidential contest: Unless unforeseen circumstances lead to a true wave election, the legislative stakes will be extremely low. The odds are heavily stacked against Democrats’ retaking the Senate, and that means that even if a Democrat wins the White House, ... Read More
Energy & Environment

The Climate Trap for Democrats

The more the climate debate changes, the more it stays the same. Polls show that the public is worried about climate change, but that doesn’t mean that it is any more ready to bear any burden or pay any price to combat it. If President Donald Trump claws his way to victory again in Pennsylvania and the ... Read More
Politics & Policy

But Why Is Guatemala Hungry?

I really, really don’t want to be on the “Nicolas Kristof Wrote Something Dumb” beat, but, Jiminy Cricket! Kristof has taken a trip to Guatemala, with a young woman from Arizona State University in tow. “My annual win-a-trip journey,” he writes. Reporting from Guatemala, he discovers that many ... Read More
Culture

What We’ve Learned about Jussie Smollett

It’s been a few weeks since March 26, when all charges against Jussie Smollett were dropped and the actor declared that his version of events had been proven correct. How’s that going? Smollett’s celebrity defenders have gone quiet. His publicists and lawyers are dodging reporters. The @StandwithJussie ... Read More
Politics & Policy

On Painting Air Force One

And so it has come to this. Two oil tankers were just attacked in the Gulf of Oman, presumably by Iran. The United States and China are facing off in a confrontation that is about far more than trade. The southern border remains anarchic and uncontrolled. And Congress is asking: “Can I get the icon in ... Read More