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No ‘chance at all’ that Supreme Court will strike down Obamacare: Laurence Tribe

Max Zahn with Andy Serwer
·4 min read

While the coronavirus pandemic has infected millions and underscored the importance of quality health care, the Supreme Court has weighed a challenge to Obamacare that, if successful, would add 21 million to the ranks of the uninsured, according to a report released last October by the Urban Institute.

The case drew renewed attention last week, when the Biden administration issued a letter in opposition to the Obamacare challenge, reversing the Trump administration's position on the case.

In a new interview, Laurence Tribe — one of the nation's top constitutional law scholars, who briefly served at the Justice Department during the Obama administration — told Yahoo Finance that the case stands "no chance at all" of striking down the law, more formally known as the Affordable Care Act (ACA).

He described the case against the law as "outlandish" and "extreme," assuring that even a conservative-majority court would keep Obamacare intact.

"I don't think there is a chance at all that the law will be invalidated," says Tribe, a professor emeritus of constitutional law at Harvard University Law School who taught there for more than 50 years.

The Supreme Court will "get rid of the case," he adds. "Now that the Justice Department under Biden has reversed the position that the Trump administration took against the law."

An "outlandish" argument

The lawsuit, brought by Republican state officials, said that Obamacare's health insurance mandate became unconstitutional when Congress in 2017 eliminated the fee for failure to acquire insurance, since the mandate could no longer be considered a tax.

A federal judge in Texas in 2018 ruled in favor of the challenge, rendering the health insurance mandate unconstitutional and in turn invalidating the entirety of the law. After an appeal, the Supreme Court listened to oral arguments last November.

Since Obamacare was enacted in 2010, Republicans have sought to undo it through legislative and legal means. The Supreme Court has heard two other challenges to the law, in 2012 and 2015. The high court's 2012 decision upheld the insurance mandate as constitutional but curbed the law's Medicaid expansions.

A decision in the current lawsuit is expected as soon as June.

Tribe sharply criticized the legal argument behind the current case, saying the challenge to Obamacare falls outside of mainstream legal analysis and puts forward dangerous slippery slope logic.

In bringing the case, Republican officials backed by the Trump administration argued that the entire law must fall without its individual insurance mandate. However, The New York Times's Adam Liptak reported after arguments that "key" justices signaled that they didn't buy that logic.

The argument is "so outlandish that I can't think of a single scholar anywhere in the spectrum of respectable scholars who ever thought it was correct," he says. "The [Trump] administration's position was outrageous."'

"Because the tax was no longer burdensome, you couldn't have a mandate to purchase insurance," he adds, recounting the legal argument put forward in the case. "And because the mandate fell, the whole thing fell."

He called the argument an "extreme version" of the absurd logic described in a centuries-old nursery rhyme entitled, "For Want of a Nail."

"For want of a shoe, the horse is lost; for want of a horse, the rider is lost...the army is lost," Tribe says.

Laurence Tribe, professor emeritus at Harvard Law School, speaks with Yahoo Finance Editor-in-Chief Andy Serwer on
Laurence Tribe, professor emeritus at Harvard Law School, speaks with Yahoo Finance Editor-in-Chief Andy Serwer on "Influencers with Andy Serwer."

Tribe spoke to Yahoo Finance Editor-in-Chief Andy Serwer in an episode of “Influencers with Andy Serwer,” a weekly interview series with leaders in business, politics, and entertainment.

Over his career, Tribe argued 35 cases before the Supreme Court and wrote a number of books, most recently "To End a Presidency: The Power of Impeachment," which he co-authored with Georgetown University Law Professor Joshua Matz.

Tribe's list of former students includes top figures on both sides of the aisle: former President Barack Obama, Senator Ted Cruz (R-TX), and House Rep. Jamie Raskin (D-MD), the lead House impeachment manager who made the case against Trump.

After oral arguments in the Obamacare case took place in November, many legal experts said they expect Obamacare to survive the challenge. But the 6-3 conservative majority has prompted concerns among Democrats that other liberal laws — such as abortion protections and gun control — may be under threat.

Such fears have fueled support among some Democrats for an expansion of the number of seats on the Supreme Court, but Tribe said he remains uncertain about that type of reform. The tactic, known as "court packing," famously failed in 1937 when FDR attempted to add justices to overcome challenges to his New Deal programs.

"A lot of the very liberal friends that I have think it's obvious that at this point, we have to play hardball and expand the court — otherwise, we are doomed," Tribe says. "My more conservative friends tend to think that the court would be ruined as an institution, if we played with it that way."

"I'm tugged in both directions," he adds.

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