Earlier this week, the Fiscal Times published several quotes from Harvard University Professor Laurence Tribe which suggested that a last ditch lawsuit seeking to blow up the Affordable Care Act could succeed. Tribe is one of the liberal lions of the legal academy. He argued Bush v. Gore on behalf of former Vice President Al Gore. And he mentored President Obama while the president was a student at Harvard Law School. So if Tribe believed that this lawsuit had merit, that would be a big deal indeed. Indeed, that explains why one of the masterminds behind this lawsuit touted Tribe’s comments earlier this morning.
But Tribe does not think that this lawsuit should win. Indeed, he explicitly told ThinkProgress that, if he were hearing this case, he would reject this attempt to undermine Obamacare.
To provide a little background, sometime after the Affordable Care Act was enacted, two of the law’s opponents discovered a drafting error in the statute which, if taken out of context, suggests that millions of people who are eligible for subsidies to buy health insurance should lose those subsidies. This sparked a bevy of lawsuits seeking to take these subsidies away from these individuals, including a case brought by a Republican consultant and a former Bush Administration official that is now pending before a federal appeals court in D.C.
Under Obamacare, states have the choice to either run their own health exchange or to allow the federal government to run a health insurance marketplace for them. The theory of these lawsuits is that residents of the 34 states that took the second option should lose their subsidies because of language in the Affordable Care Act that ties the subsidies to “an Exchange established by the State,” as opposed to one established by the federal government. Yet, the Supreme Court has long held that “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” As ThinkProgress has previously explained, it is clear from the language of the Affordable Care Act taken as a whole that these lawsuits lack merit.
In his interview with the Fiscal Times, Tribe acknowledges the risk that the conservative Roberts Court could use this case as a “second bite of the apple” enabling them to grievously wound Obamacare, though he also expressed skepticism of the idea that Chief Justice John Roberts, who rescued the law from the last attempt to repeal it through litigation, will switch his vote this time around. According to Tribe, Roberts would ask himself whether “it [is] 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.”
In an email to ThinkProgress, Tribe added that he personally believes that these lawsuits should fail. Referring to the Supreme Court’s Chevron Doctrine, which provides that courts should defer to a federal agency’s interpretation of a law so long as “the agency’s answer is based on a permissible construction of the statute,” Tribe wrote that “I do think Chevron deference would be entirely appropriate, and if I were on the Court, I would reject the literal interpretation and argue that HHS and IRS are entitled to interpret the law the way the Obama administration is construing it.”