Posted on 07/11/2014 1:41:49 PM PDT by afraidfortherepublic
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.
Pfffft, both parties want this kind of power. They’ll fix it, obamacare isn’t going anywhere, unless it’s an expansion to single payer.
I believe it will survive the next court challenge.
The Ruling Class is tired of being constrained by the Constitution and so they’re going to dump it.
It will survive just fine. Roberts will decide it was a “typo.”
I thought if one part of Obamacare wasn’t implemented the entire thing was voided. What happened to that?
No, they own him.
Wickard vs. Filburn is sure hanging tough.
This one isn’t a constitutional issue. It’s just an issue of whether the implementation is consistent with the law. I think this is an easy case of making the dems eat their own vomit, and (assuming it gets to the USSC) Roberts shoves it down their throats, with relish.
Tribe's so full of it. Robert's ruling was as strict as possible - that strictness MADE his ruling.
Wickard also flew in the face of our Framers, who specifically rejected expansive powers over any and all things remotely related to commerce.
It’s nice to have exchanges with people here who understand the Constitution.
I actually do practice (not teach:)) Constitutional law so I’m pretty sure when I give my thoughts on these topics.
The sad thing is that the court could really be a for for good in protecting liberty if it wasn’t so politicized.
There are some very complicated issues, but to have a sure four votes (presumably) to allow this IRS rule is just pitiful. If only there was one honest liberal on the court it would be nice. But no, there isn’t.
You were spot on regarding the 17th.
Absent the 17th, if we still had a senate of the states, we would never have had a single member of Scotus who was hostile to the 9th and 10th amendments.
Scotus has done enormous damage to our republic, all because the states weren’t around to defend themselves.
Sadly it’s too difficult to explain the horrors of the 17th Amendment for there to ever be a serious push to repeal it.
I wonder what percentage of the public even know what the 17th Amendment did or how things were before it.
On the bright side, I had a 45 minute meeting with my state rep last year. He warmed to the repeal idea, and FL subsequently sent delegates to the last Assembly of States in Indianapolis this past June.
I've been pressing at FR for 17th repeal since its 100 year anniversary in April 2013, and have been amazed at the level of resistance.
Have you visited conventionofstates.com?
Bookmark
The problem I see is that the knee jerk reaction to the idea of repealing the 17th A is that people don’t want to cede the power to choose their US Senator.
It takes a full blown conversation with a thinking person to explain how dividing power (even one’s own) has the effect of expanding liberty.
Keep up the fight.
Maybe the states will wake up and reclaim the power that was ultimately designed to preserve our liberty.
A convention of the states would be the way to go for sure.
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