Is Laurence Tribe Right That Liberals Should Like His Bad Conservative Arguments? (SPOILER: No.)

I see Laurence Tribe is trying to argue that if you buy the argument that the willful misreading of the ACA by the King v. Burwell plaintiffs would produce an unconstitutionally coercive scheme then you’re also bound to buy his nutty, radical theories about the Clean Power Plan. You will be unsurprised to know that this argument doesn’t make any sense:

King challengers’ interpretation of Obamacare is exceedingly strange, which in turn makes it difficult to weaponize against other regulatory programs in an honest way. King posits that Congress sought to create universal health care programs on a state-by-state basis by threatening to ruin insurance markets—to frustrate their ultimate universal health care goal—in non-capitulating states.

The Clean Power Plan is nothing like that. It encourages states to implement plans to reduce greenhouse gas emissions, and says the federal government will step in and implement a different plan toward the same end in states that decline. Tribe describes the federal fallback derisively when he says, “EPA claims the power to impose severe sanctions, including the loss of highway and Clean Air Act funds, as well as the imposition of a centrally planned and administered federal scheme that could harm not simply the State but also its citizens and economy.”

But even on his own terms, this is nothing like the coercive scheme at issue in King. For the parallel to hold, the EPA would have to be encouraging states to implement their own clean power plans by threatening to exacerbate pollution in states that don’t, or something similarly counterproductive.

“If the Clean Power Plan example looked like King vs. Burwell,” University of Michigan law professor Nicholas Bagley told me, “what you’d have is a federal scheme that didn’t provide power to people, didn’t reduce emissions, and torched the energy market in each state.”

Boston University law professor Abby Moncrieff is of a similar view. In a detailed post on Harvard Law School’s website, she explains why King and the Clean Air Act, from which EPA derives its authority to implement the Clean Power Plan, are nothing alike.

And, of course, this is additional problem with Tribe’s attempted neener-neener. The correct answer in King v. Burwell is not “Congress set up a federal backstop that was designed to fail, which is unconstitutionally coercive.” The correct answer is “Congress established a federal backstop that was intended to work, and hence makes tax credits available to purchasers of health insurance on federally established exchanges.” That the former argument may be the only way of getting Kennedy and/or Roberts not to wreck the exchanges still doesn’t put liberals in much of a bind, and even if the Court does so rule it still would say less than nothing about the constitutionality of the Clean Power Plan.

Incidentally, Tribe tried the same kind of routine to defend the Medicaid expansion holding in Sebelius: “the spending power can be used to threaten the First Amendment rights of individuals, so liberals should approve of arbitrary, nonsensical limits on the federal spending power than have nothing to do with the First Amendment rights of individuals.”

I believe that the primary influence on Tribe’s new theory of “inventing non-existent contradictions to bootstrap terrible neoconfederate arguments” was Homer Simpson:

“First you didn’t want me to get the pony. Now you want me to take it back. Make up your mind!”