Obamacare Subsidies: Liberals Throw A Hail Mary Pass

Liberals must be nervous about the Supreme Court’s big ObamaCare subsidy case because last week they decided to throw one last Hail Mary pass to Justice Anthony Kennedy . We hope he or Chief Justice John Roberts don’t fall for it.

During a week they hear oral arguments, the Justices typically hold a private conference on Friday morning in which they declare where they are leaning on the cases. Just in time for last week’s Friday conference, liberal scholar Abbe Gluck tried one more state’s rights gambit to pull Justice Kennedy to the side of the four liberals who clearly want to uphold the subsidies delivered through federal exchanges.

Ms. Gluck teaches at Yale, but she clerked for Justice Ruth Bader Ginsburg and knows well Justices Sonia Sotomayor and Elena Kagan . It’s clear from Wednesday’s oral argument that she heavily influenced all three, and it’s possible the Justices or their clerks urged her to give it one more try.

Judge Anthony Kennedy

In an article in Politico, she suggested that denying subsidies in states that have federal exchanges at this stage would violate the Supreme Court’s “clear notice” standard of federalism. That concept, promulgated in the Pennhurst case in 1981, sensibly holds that the federal government must give adequate warning if it is going to impose new conditions on the states.

Ms. Gluck’s claim is that declaring these subsidies illegal more than a year after the subsidies started to flow would violate that “clear notice.” Liberal legal blogs that normally disdain state’s rights amplified this as an argument that could sway Justice Kennedy to save ObamaCare.

Read the rest of the Article HERE.

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