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Friday, July 18, 2014

A do over for Justice Roberts?

The fact that he once described Barack Obama as "the best student I ever had," makes one think that Harvard Law Professor Laurence Tribe has a propensity to exaggerate but if the professor's claim is true Chief Justice John Roberts may get a do over on Obamacare. In an opinion piece in the Boston Globe, A death blow for Obamacare? Tribe foresees the legality of the entire ACA law once again being decided in the Supreme Court. He notes that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito oppose the law on philosophical grounds and probably will not be sympathetic to claims by the administration that the court should try to discern the intent of Congress rather than apply the letter of the law.
The issue is the language of the ACA that establishes the health care exchanges. The law reads that the states shall establish exchanges but when 36 states declined to do so HHS established a federal exchange in their stead. If the Court applies the law as written residents of the 36 states would not be eligible for premium subsidies but would be subject to the tax penalties for not having bought the overpriced insurance.
Opponents of Obamacare raised this question soon after the establishment of the federal exchange but attention focused on the individual mandate which Justice Roberts explained was really a tax and perfectly constitutional. Now this argument has come to the fore and once again the Obamacare may need Justice Robert's vote to survive. Let's hope he gets it right this time!

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