Jody Freeman

A commentary by Jody Freeman: Today, the Supreme Court held that federal subsidies to help Americans buy health insurance under the Affordable Care Act are available in every State, whether the States themselves or the Federal government sets up the health care exchanges. This is a major victory for the Obama administration, which had adopted that view of the law in an Internal Revenue Service rule. Unless subsidies are available nationwide, the Act’s scheme does not really work, because insurance would become more, not less expensive, and premiums would soar, undermining the core purpose of the law, which is to insure every American. Yet in finding for the Obama administration, the Court nevertheless struck a blow against the executive branch. The Chief Justice’s majority opinion showed zero deference to the administration’s interpretation of the law. The Court construed the Act for itself.

Here’s a twist for the Obama administration as it awaits a U.S. Supreme Court decision on the biggest environmental rule of its first term: A loss shores up the legal basis of the biggest environmental rule of the second term. The high court is set to decide as soon as Thursday on the 2012 rule by the Environmental Protection Agency that ordered curbs in mercury and other toxic pollutants emitted from coal-fired power plants...To be sure, a loss at the Supreme Court could still set a bad precedent for any future case over the EPA carbon rule, and might not result in a clear repeal of the mercury rule. “The rule in the past has been: Ambiguity favors the agency,” said Jody Freeman, a Harvard law professor who has contended that Tribe’s argument is wrong. “If the court changes its mind, it would signal that it is not in an especially deferential mood, which is not a good sign.”

How could constitutional scholar and Harvard Law School professor Laurence Tribe's involvement in last week's U.S. Court of Appeals for the District of Columbia Circuit hearing on the Clean Power Plan affect the future of the rule? During today's OnPoint, Richard Lazarus and Jody Freeman, professors at Harvard Law, explain why they believe the government came out ahead during last week's federal court hearing. They also rebut Tribe's arguments against the constitutionality of the Power Plan.

A federal appeals court panel suggested Thursday that it may be too early for a court challenge to an Obama administration proposal to cut carbon emissions from U.S. power plants. The case against the Environmental Protection Agency, up for oral argument at the U.S. Circuit Court of Appeals for the District of Columbia Circuit, is the first test of how well the central component of President Barack Obama’s climate agenda can withstand legal scrutiny. ...“If it winds up that the court for whatever reason stops EPA, that will be a very significant blow to the president’s agenda,” said Jody Freeman, a Harvard law professor and former climate adviser in the White House during Mr. Obama’s first term as president.

Coal-mining companies Peabody Energy and Murray Energy have sued to block the Environmental Protection Agency from finalizing its Clean Power Plan, the Obama administration’s broadest plan to reduce carbon-dioxide emissions from power plants. Today lawyers present oral arguments in the federal Court of Appeals for the District of Columbia. In general, the law favors the EPA, according to Harvard law professor Jody Freeman, a former attorney for the Obama White House who wrote the book on climate change and U.S. law, published by the American Bar Association. If the court allows the case to move forward, "I would be very surprised," she says. "Now, of course, look: Courts sometimes do unusual things." A decision against the EPA—  even if reversed later— would mean delay, which could be costly to President Obama, who has a tight timeline.  

President Obama’s most far-reaching regulation to slow climate change will have its first day in court on Thursday, the beginning of what is expected to be a multiyear legal battle over the policy that Mr. Obama hopes to leave as his signature environmental achievement. ... Among the lawyers arguing on behalf of the coal companies is Laurence H. Tribe, a renowned Harvard scholar of constitutional law, who was also a mentor to Mr. Obama when he attended law school. Republicans who opposed the rule have cheered Mr. Tribe’s role in the case. Legal experts say it is also possible that the judges could throw the case out, since the rule has only been proposed and thus contains language that could change when released in the final form. “Is industry right that the agency lacks the authority to regulate? The challenge is extremely unusual, since the rule is proposed, and not final,” said Jody Freeman, the director of Harvard University’s environmental law program and a former senior counselor to Mr. Obama. “For a court to entertain that would go against decades and decades of precedent.”  

The environmental case being argued on Thursday in a federal appeals court in Washington is equal parts legal freak show and serious legal business. On the serious side, it is the latest attempt by fossil-fuel interests to embalm the Environmental Protection Agency and the Obama administration's climate plan. But it is the legal sideshow orchestrated by constitutional scholar Laurence Tribe of Harvard that is unsettling to many environmental lawyers. ... Jody Freeman, another Harvard law professor, called the challenge’s timing "extremely unusual," and Harvard’s Richard Lazarus, who called the legislative history of the disputed clauses in the law "beyond novel" and "really bizarre." Both professors strongly disagree with Tribe’s arguments.  

Laurence H. Tribe, the highly regarded liberal scholar of constitutional law, still speaks of President Obama as a proud teacher would of a star student. “He was one of the most amazing research assistants I’ve ever had,” Mr. Tribe said in a recent interview. Mr. Obama worked for him at Harvard Law School, where Mr. Tribe has taught for four decades...Which is why so many in the Obama administration and at Harvard are bewildered and angry that Mr. Tribe, who argued on behalf of Al Gore in the 2000 Bush v. Gore Supreme Court case, has emerged as the leading legal opponent of Mr. Obama’s ambitious efforts to fight global warming...“The administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless,” Jody Freeman, director of the environmental law program at Harvard Law School, and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe’s brief on the Harvard Law School website.

In a speech on climate change delivered during her visit to China last month, Harvard President Drew Faust described the problem as “a struggle, not with nature, but with ourselves.” During Climate Week April 6-10, Harvard will take a long look at the ongoing struggle to find man-made solutions to this man-made problem...At Harvard Law School, faculty members are debating President Barack Obama’s proposed power plant rules, which aim to reduce greatly the carbon dioxide emissions from existing facilities. Two of the nation’s top environmental lawyers, Jody Freeman, the Archibald Cox Professor of Law and director of the School’s Environmental Law Program, and Richard Lazarus, the Howard and Katherine Aibel Professor of Law, have posted online rebuttals to constitutional scholar and Carl M. Loeb University Professor Laurence Tribe’s contention that the proposed rules are unconstitutional.

Climate-change activists and advocates seldom have trouble finding villains. But recently, they've found a new one in a strange place: famed legal scholar and Obama mentor Laurence Tribe, in his office at Harvard Law School. Tribe has been the highest-profile legal scholar to criticize the Obama administration's rules for carbon-dioxide emissions from coal plants, which were formally proposed in June 2014. (He's one of the few law professors who is frequently and plausibly referred to as an "icon.") In a formal comment submitted to the EPA, a Wall Street Journal column, a House energy committee hearing last week, and other venues, Tribe has argued against the rule, suggesting both that it runs contrary to the relevant statute and that it violates the Fifth and Tenth Amendments to the Constitution. ... And Tribe's opponents also bring significant legal firepower to the discussion. One opponent is Richard Revesz, dean emeritus of New York University Law School, who testified in favor of the rule in last week's House hearing and wrote a New York Times op-ed Thursday disagreeing with Tribe. Two others are Richard Lazarus and Jody Freeman, colleagues of Tribe's at Harvard Law.

Laurence H. Tribe, the liberal icon and legal scholar, has grabbed headlines in recent weeks for publicly attacking President Obama’s signature climate change initiative — the Clean Power Plan — which would regulate carbon emissions from power plants. He was retained as an independent expert by Peabody Energy, the world’s largest private-sector coal company, and is representing it in a lawsuit that seeks to invalidate the plan...In the estimation of his Harvard Law School colleagues Jody Freeman and Richard Lazarus, “Were Professor Tribe’s name not attached to” these arguments, “no one would take them seriously.” But even if his claims don’t help Peabody in federal court, they are undoubtedly useful in the court of public opinion, where sentiment can be swayed by legal arguments, however weak, from a scholar of Professor Tribe’s reputation.

An op-ed by Jody Freeman and Richard J. Lazarus. When Mitch McConnell sent his recent letter to the nation’s governors urging them to ignore the White House’s upcoming clean-power rules, it was striking for two reasons. First, as the headlines pointed out, it’s a dramatic moment when a congressional leader openly tries to rally the states against a new federal policy. And second, McConnell’s legal justification relies on none other than Laurence Tribe—Barack Obama’s former law professor, and one of the nation’s top liberal law scholars—to argue that the upcoming EPA rules are unconstitutional.

At Harvard Law School, contentious legal debates are commonplace. Whether in a classroom, over lunch, or in the pages of one of the school’s many legal journals, professors and students respond to, critique, and question one another’s views. But notably, over the past week, University professor Laurence H. Tribe ’62 and Law School professors Richard J. Lazarus and Jody Freeman, in what Tribe described as an “uncommon event in Harvard Law School’s history,” took the discussion to the Harvard Law Today website. The exchange began after Tribe testified before the U.S. House of Representatives Subcommittee on Energy and Power on the Environmental Protection Agency’s “Clean Power Plan.”

Earlier this week, Harvard law professor Laurence Tribe testified before Congress on the legality of the Environmental Protection Agency’s plans to regulate greenhouse gas emissions from coal-fired power plants under Section 111 of the Clean Air Act. Tribe’s testimony garnered attention because he challenged the lawfulness of EPA plans and raised several constitutional concerns...Tribe’s criticisms of the EPA attracted attention not just because he is a prominent liberal law professor, but also because he briefly worked in the Obama Administration (though not on environmental matters) and was one of the president’s professors (and has sometimes been described as a “mentor”). Tribe’s testimony, and his suggestion that the EPA’s climate plans involved “burning the Constitution,” also prompted some pushback. Most notably, two of his colleagues at Harvard Law School — Richard Lazarus and Jody Freeman — penned a response on the HLS Web site, challenging Tribe’s legal and constitutional analysis, with an emphasis on the latter. Tribe, in turn, wrote a lengthy rejoinder, also on the HLS Web site. This back and forth is a preview of the legal battle that awaits the EPA’s Clean Power Plan.