Friday, July 18, 2014


Eschewing Hubris

I don't think I'm smarter than Lawrence Tribe, far from it, but I can recognize a mistake in judicial or quasi judicial analysis when I see it. And I see one here. Tribe sees the danger to Obamacare that the drafting I pointed out here creates. I say that the 'danger' of the case is that the law of statutory interpretation make the outcome I cautiously predict necessary. He sees it as a minor error that should not be a problem but which could provide the conservative judges with an excuse needlessly to harm the ACA. Tomato, tomato. But here is a definite mistake.

So, when this case ultimately reaches the court, the ACA’s fate would again rest in the hands of Roberts, just as it did in 2012. If Roberts is true to his pragmatic judicial philosophy, he should find the challengers’ reading unconvincing. He has repeatedly held that, where fairly possible, a court should interpret an ambiguous law in a way that avoids finding the law unconstitutional. It was that principle that led him to vote to uphold the individual mandate and should lead him to side with the Obama administration in this latest round of attacks. (Emphasis added).

That bold section is accurate law and it did clearly inspire the Chief Justice in an earlier case to hold the ACA constitutional, as it should have. But there is nothing about unconstitutionality in the case Tribe and I are talking about. The case in front of the DC Circuit involves merely a matter of making the executive branch enforce the law as written. The do what you can to uphold a law's constitutionality rule does not apply. Tribe apparently whishes it would as it would probably dictate the result again. But it's not there.

So we got that going for us, which is nice.


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