Obama's Old Law Professor 'Wouldn't Bet the Family Farm' on Obamacare Subsidies Surviving at SCOTUS

Credit: WhiteHouse.gov

Harvard University law professor Laurence Tribe is a veteran liberal scholar who counts both President Barack Obama and Chief Justice John Roberts among his former students. In 2012 Tribe had the unique experience of watching one of those former students cast the deciding vote to secure the existence of the other's signature legislative achievement. I refer of course to National Federation of Independent Business v. Sebelius, in which Roberts led the Supreme Court in upholding the constitutionality of the Patient Protection and Affordable Care Act.

In light of yesterday's conflicting decisions by two different federal appellate courts—one of which ruled that the tax subsidies issued through federally run health care exchanges in 36 states are illegal while the other court upheld those subsidies—it now appears that the Supreme Court may once again get the opportunity to decide Obamacare's fate. And in a recent interview with The Fiscal Times, Professor Tribe offered this prediction about how the Roberts Court is likely to rule this time around. "I don't have a crystal ball," Tribe said. "But I wouldn't bet the family farm on this coming out in a way that preserves Obamacare."

For more on yesterday's Obamacare rulings, see here.

Comments

[mister b?nus]

This man has no farm! He's a filthy phony liar!

[Fr?ulein Nikki]

waffles, is it you? I have a mission to harass you, if so.

[Fist of Etiquette]

This whole ordeal is very taxing.

[Scarecrow Repair]

That's the penalty for participating in the social contract your parents signed for you.

[briannnnn]

It looks like Roberts and Obama are high fiving.

[Notorious G.K.C.]

"it now appears that the Supreme Court may once again get the opportunity to decide Obamacare's fate"

And I bet the justices are *so* thrilled!

[The Late P Brooks]

Is Tribe the one who taught those clowns to value judicial deference so highly?

[Notorious G.K.C.]

I think he's one of those "judicial deference for *our* laws, not for yours" kind of guys.

[Rich]

"But I wouldn't bet the family farm a $4.25 million home in the exclusive golf community of Rancho Mirage, Calif. on this coming out in a way that preserves Obamacare."

FTFY

[Notorious G.K.C.]

I don't know if the story is true, but a place with the name "mirage" in it would be and symbolic fit for this President.

[EDG reppin' LBC]

Rancho Mirage is beautiful. The wife and I like to go out there and pretend we're in the 1% for the weekend.

[Rich]

Let's see ....

"In a bizarre twist, all copies of the ACA have been lost in hard drive crashes."

[Loki]

Don't give them any ideas.

[Jordan]

Harvard University law professor Lawrence Tribe is a veteran liberal scholar who counts both President Barack Obama and Chief Justice John Roberts among his former students.

In other words, Lawrence Tribe is a really, really shitty Constitutional Law scholar.

[Fr?ulein Nikki]

You can lead a horse to water, dude, but that's about it.

[db]

You can lead a horse to water...but you can't stop him from drinking his own urine.

[db]

Twitter FAIL:

"BREAKING: Dutch military plane carrying bodies from Malaysia Airlines Flight 17 crash lands in Eindhoven."

[Notorious G.K.C.]

Wait - did that actually happen, or did some guy on Twitter make a (gasp) mistake?

[db]

Really bad wording on the part of the AP.

[Notorious G.K.C.]

Oh, I get it - red tape holds up new bridge, defendant's speech ends with long sentence.

[Notorious G.K.C.]

Woman off to prison for sex with boys

/actual examples of headlines

[Notorious G.K.C.]

British Left Waffles on Falklands

[Notorious G.K.C.]

Statistics on Women: Some Good, Some Bad

Farmer Bill Dies in House

[Notorious G.K.C.]

Defendant Gets Cruel Punishment: Lawyer

[Doctor Whom]

Pig Heart Attacks

[DEATFBIRSECIA]

Small Medium at Large

[Scarecrow Repair]

Nut bolts and screws

[Drake]

Oh, by the way: Obama just quietly suspended ObamaCare's individual mandate until 2016.

http://hotair.com/archives/201.....ntil-2016/

[WTF]

Article 2, Section 3 is just really old and no one understands it, anyway.

[robc]

Can I keep my non-ACA-compliant policy and then file the hardship?

Im fine with keeping my current plan thru 2016. And probably forever.

[Sevo]

Well, it can be read as
.
.
.
.
.
COMMERCE CLAUSE, Dummies!

[WTF]

Given that the plain language of the legislation does not provide for subsidies for the federal exchange, the fact that this is even up for debate shows how far gone we are from the rule of law.

[PapayaSF]

WTF: Indeed, WTF.

[John Aronson]

You left out the SUPREMACY CLAUSE, Art. VI, cl. 2!

Truly, Con Law for the 60 years is really all about the commerce and supremacy clauses.

[Doctor Whom]

Plus the stuff that isn't even in the Constitution, but that inhabits a penumbra, an emanation, a residuum of sovereignty, or some such. I don't lightly agree with judicial conservatives, but they have a point when they accuse judicial liberals of replacing the language of the Constitution with something else and construing that something else.

[Pro Libertate]

There was a process for altering the Constitution built into the Constitution. It's called amending the Constitution. There are even rules and stuff for passing and ratifying such amendments.

[GroundTruth]

But, but... that's way too hard, and not fair. Obumma wants it, and that's all that matters.

[Pro Libertate]

Sadly, this problem is bigger than Obama.

[GroundTruth]

Well, Obumma at the moment, Bush previously, and a candidate to be named next.

Better?

[Rich]

residuum of sovereignty

Nice band name.

[Old Man With Candy]

James Bond movie.

[Swiss Servator, Alles Klar]

+1 Quantum of Box Office Receipts

[sasob]

Plus the stuff that isn't even in the Constitution, but that inhabits a penumbra, an emanation, a residuum of sovereignty, or some such.

In other words: the clinging odor that hangs in the air when a pack of professional prevaricators pull something out of their asses.

[Pro Libertate]

What's interesting is that the whole "penumbra" business came from the Supreme Court trying to find a justification for protecting privacy as a fundamental right, separate from the 4th and 5th Amendment rights.

If you think about it a bit, that's an amazingly wrong-headed analysis that must've come from a very strong desire not to state that there are myriad fundamental rights protected by the Constitution that aren't set out in the Constitution. Yet that's precisely what the Founders said they were doing--over and over again. In fact, that was the whole basis of the debate over adding the Bill of Rights in the first place.

[ant1sthenes]

Were they really trying to protect any and all rights someone might imagine, or just common law rights as they were known at the time?

[Pro Libertate]

Well, I'm sure they had their own ideas, but I doubt they were thinking about "rights" the way some do today--as is in the "right" to other people's money.

[sasob]

Yet that's precisely what the Founders said they were doing--over and over again. In fact, that was the whole basis of the debate over adding the Bill of Rights in the first place.

And the purpose of adding the ninth amendment, I believe.

[antisocial-ist]

I haven't read the 4th circuit's opinion, but didn't they basically say "The law clearly does not give the fedgov authority to issue subsidies, but fuck you we're doing it anyway."

[WTF]

Basically, yes. They decided to defer to the presumed intent of the legislators rather than the plain language of the actual law.

[Brian]

But who knows what they really intended? It was written so long ago, by people we can barely understand now.

OK, now let's change topics and use our BA degree's to study Shakespeare.

[db]

Let's focus on punctuation for now.

[DEATFBIRSECIA]

Youch!

[GroundTruth]

"Current events are a tale full of sound and furry, told by an idiot, meaning nothing." Hamandeggs, Act ill.

or something like that, I'm too lazy to look it up at the moment.

[Loki]

But who knows what they really intended?

Court judges are mind readers? Or maybe they got a hold of the legislators emails and phone call logs from the NSA and were able to figure out their intentions from those?

[Sevo]

"Basically, yes. They decided to defer to the presumed intent of the legislators rather than the plain language of the actual law."

OK, but this was an issue discussed at the time (by those who have no ability to affect the shit sandwich). It was noted to be a lever by which to entice state gov'ts to waste their money on the exchanges.
So is that public discussion part of what can be offered as evidence?

[WTF]

That's why the DC circuit ruled against the subsidies, because they could offer no evidence of any indication of intent at the time of the legislation to include the federal exchange as eligible for subsidies. The Fourth circuit on the other hands just went 100% FYTW and accepted the government's argument of 'intent' even though there is no evidence to support such.

[Whahappan?]

And there is much evidence to the contrary, although I don't know what was presented in court. It is crystal clear that congress INTENDED to limit subsidies to state exchanges as a way of forcing states to create them. The Fourth Circuit is an abomination, and should be called out publicly as such.

[mister b?nus]

Is the individual mandate even enforceable? I guess this law just means whatever the person in charge wants it to mean. I feel the real loser is anyone who actually gets hung up on compliance.

What a tremendous waste of resources this clusterfuck has been and will continue to be.

[alan_s]

"Is the individual mandate even enforceable?"

Yes, in the same way that income tax withholding is enforceable.

[Tim]

The system is rigged. Roberts already proved that.

[GroundTruth]

Someone else needs to prove it, Roberts is the one who rigged it.

[sasob]

Fuck Roberts. He had a golden opportunity to strike a blow for individual freedom and against oppressive government. Instead he sold his country down the river. He's probably going to get a chance to do the same thing a second time - and probably will.

[Fluffy]

The progs feel like they are entitled to a law that "works" (whatever that means) and they are entitled to this without having to go back to the Congress for any new law or modification...because that would be hard.

Unfortunately I am pretty sure John Roberts will agree with them.

[Loki]

Perhaps they should have passed a law that "works" the first time around.

[EDG reppin' LBC]

Listening to Jane's Addiction Nothing's Shocking. Fucking good album.

Also, Obamacare is stupid.

[Brett L]

Ooh. That's on Amazon Prime music. I'll listen to that at work. I'll bet I've listened to that album literally 1000 times. And I still like listening to it.

[Brett L]

Hmm. That's too low. I listened to it 1000 times/year for a couple of years there. Maybe... 5000 times?

[EDG reppin' LBC]

We were driving from Bloomington, IN to New Orleans. It was Jen's car, so she got to pick the music. I was driving. It was about 4 in the morning just outside of Birmingham, AL. Jen loved Nothing's Shocking. But it was like the sixth straight time we'd listened to it. Everyone was finally passed out, drunk and asleep. I ejected the cassette and threw it out the window. When I told her what I did, she flipped out. I bought her a new copy.

I think I listened to that album 5,000 times in December 1989.

[Brett L]

I spent a summer delivering pizzas and it seems like the only CDs I had in the car, ever, were a Velvet Underground CD which was always on Sister Ray (it was about 1/3rd of the CD by running time) when I started the car and Nothing's Shocking. And then I'd listen to Art Bell when it got late.

[Old Man With Candy]

Jesus, you guys listen to some shitty music.

Whenever I have to do a long drive for business (we go regularly between Chicago and Davenport) and have one of my co-workers in the car with me, I put on my song mix from my iPhone through the car's BlueTooth.

No-one wants to ride with me a second time. Good. Assholes wouldn't recognize good music if it bit them in the testicles.

[RBS]

Cool, I was listening to some Porno For Pyros this morning.

[Tony]

It's weird that Tribe has been going around talking about the SC on this when everyone else thinks there's not going to end up being a circuit split, since the decision by the DC panel is transparently ridiculous.

[Ken Shultz]

Tony, you really are clueless, aren't you?

LOL

[Tony]

Just because you hate the law doesn't mean the DC panel's reasoning was good.

[Ken Shultz]

Talking like Tony is like talking to a Magic 8-Ball, except the answers from a Magic 8-Ball make more sense than Tony.

[kbolino]

Just because you hate the law* doesn't mean the DC panel's reasoning was good.

* in accord with the policy of the Obama administration, the phrase "the law" shall not be construed to include "the actual wording of the statute"

[Tony]

*Clears throat.* To quote one Antonin Scalia, it is "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."

Given the law's explicit acknowledgment that subsidies would apply to all states in other areas (even if it was only implicit in the poorly worded language at issue), it seems unambiguous.

Even if it were ambiguous, courts still have to apply the Chevron deference principle, which obliges them to determine if the government's interpretation of the law is plausible. It is clearly implausible that Congress intended for the law to completely undermine itself (especially since every single Congressmen, when asked, has clarified that it does not). For the SC to uphold this opinion it would require the conservative justices going against decades of their own opinions on this deference principle.

The ruling will be retried en banc and will be reversed, thus no circuit split and no SC, which surely doesn't even want this case.

[Cytotoxic]

it is "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."

And that context is clear: Congress wanted to use the subsidies as a cudgel to press state governments into setting up their own exchanges, which many of them didn't so Dems had to find a way to dispense money by federal exchange. They did this by saying the law doesn't say what it says. The law explicitly limits subsidies to state exchanges. Any other reading is implausible. You lose.

[Tony]

See you in court.

[kbolino]

You are quoting Scalia (Utility Air v. EPA) who is himself quoting O'Connor (529 U.S. 120) who was herself quoting Kennedy (489 U.S. 203).

But the search for that quote first turned up a bunch of lefty websites, so I should not be surprised that you are simply regurgitating their talking points.

In that same opinion, Scalia also quoted "One ordinarily assumes 'that identical words used in different parts of the same act are intended to have the same meaning.'" He is quoting Souter (549 U.S. 561) who himself quoted Sutherland (286 U.S. 427) who himself quoted the English case Courtauld v. Legh.

So cherry picking quotes is not itself sufficient to determine the jurisprudence of law.

Who'd'a thunk it?

[paranoid android]

As a very stupid man once said, "I think I smell fear."

[Carolynp]

No, the fact that the DC panel actually chose their ethics over their politics proves their reasoning is good. You have to throw out the law to end at any other supposition. I thought you liked this law?

[Tony]

I highly doubt that. At any rate it's judicial activism to a monumental degree. Two judges get to completely alter the American healthcare system?

[Whahappan?]

By upholding the law as written.

[kbolino]

the decision by the DC panel is transparently* ridiculous.

* in accord with the policy of the Obama administration, the word "transparent" has been redefined as a synonym of "opaque"

[Bobarian]

"the word "transparent" has been redefined as a synonym of "opaque"

I thought it meant "invisible" or "undetectable"?

[kbolino]

If "transparent" in "the most transparent administration ever" meant "invisible" or "undetectable", then I think all of us here would rejoice.

[Cytotoxic]

Yes, the decision in favor of the subsidies was ridiculous.

[Swiss Servator, Alles Klar]

So the actual words in the law, references and definitions just don't mean anything, eh?

" "I don't know what you mean by 'glory,'?" Alice said.
Humpty Dumpty smiled contemptuously. "Of course you don't?till I tell you. I meant 'there's a nice knock-down argument for you!'?"
"But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean?neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master?that's all."

Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. "They've a temper, some of them?particularly verbs, they're the proudest?adjectives you can do anything with, but not verbs?however, I can manage the whole lot! Impenetrability! That's what I say!"

[ant1sthenes]

Yes, all sensible people know that when Congress passes a law playing chicken with the states by strapping poor people to the front of their ride, and the states refuse to swerve, the IRS then gains the authority to usurp the legislative power.

[Ken Shultz]

My understanding is that Roberts switched his vote because he didn't want to delegitimize the Supreme Court or, rather, he was worried about the reputation of the Supreme Court--am I the only one that remembers this?

Personally, I can't think of any decision that's done more to hurt the reputation of the Court than Roberts' decision to switch his vote on ObamaCare--not for a long, long time. It was certainly worse than Kelo.

...and I don't understand why we shouldn't expect Roberts to do the same thing again. If he's taking the reputation of the Court into consideration (as if bad decisions like NFIB v. Broccoli don't hurt the court's reputation), then why wouldn't he make the same calculation again?

Saying you wouldn't "bet the family farm" means that you're not 100% sure. He might be 98% sure that Roberts will do the same thing again.

[Cytotoxic]

Eh Roberts ruled correctly in Hobby Lobby.

[Brett L]

OT: "This ain't your daddy's ox cart, Jesus!"

A Indiana woman ran over a motorcyclist and slammed into a Ford pickup truck because she let Jesus take the wheel.

[Jordan]

Did it play out like this:

"Jesus, take the wheel"
*steering wheel disappears*

[Swiss Servator, Alles Klar]

Nice.

*applause*

[The Late P Brooks]

Sadly, this problem is bigger than Obama.

Indeed. Has it really just recently come to the attention of the Speaker of the House that the executive branch has usurped* much of what is properly the responsibility of Congress?

*with their willing acquiescence

[rrose726]

Start working at home with Google. It's a great work at home opportunity. Just work for few hours. I earn up to $100 a day. I can't believe how easy it was once I tried it out. http://www.Fox81.com