June 5, 2015 by
For the second time in three years, Chief Justice John Roberts has rewritten the Affordable Care Act in order to save it. Beyond its implications for health care, the Court’s 6-3 ruling in King v. Burwell is a landmark that betrays the Chief’s vow to be “an umpire,” not a legislator in robes. He stands revealed as a most political Justice.
The black-letter language of ObamaCare limits insurance subsidies to “an Exchange established by the State.” But the Democrats who wrote the bill in 2010 never imagined that 36 states would refuse to participate. So the White House through the IRS wrote a regulation that also opened the subsidy spigots to exchanges established by the federal government.
Chief Justice Roberts has now become a co-conspirator in this executive law-making. With the verve of a legislator, he has effectively amended the statute to read “established by the State—or by the way the Federal Government.” His opinion—joined by the four liberal Justices and Anthony Kennedy—is all the more startling because it goes beyond normal deference to regulators.
Chief Justice Roberts concedes that the challengers’ arguments “about the plain meaning” of the law “are strong.” But then he writes that Congress in its 2010 haste bypassed “the traditional legislative process” and thus “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.” So because ObamaCare is a bad law, the Court must interpret it differently from other laws.
More to the political point, the Chief argues that withdrawing the subsidies would undermine larger ObamaCare goals such as giving “certain people tax credits to make insurance more affordable” and could lead to bad policy consequences like higher costs. “It is implausible that Congress meant the Act to operate in this manner,” he writes.
Even Solicitor General Donald Verrilli didn’t try to convince the Justices to rule in favor of the good intentions of “reforming” one-sixth of the economy. Instead he stressed statutory ambiguity and asked the Court to defer to the IRS. But Chief Justice Roberts goes beyond this and simply substitutes his own version of what he thinks Congress intended. This means that not even a new President with a new IRS could rewrite the subsidy rule because this rule is now what Chief Justice Roberts says it is.
As Justice Antonin Scalia observes in his coruscating dissent, “We [the Court] lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.” (See more Scalia nearby.) The framers made the judiciary the least accountable branch and vested all legislative power in Congress to protect the accountability necessary for durable self-government.
Justice Scalia quips acidly that “we should start calling this law SCOTUScare,” but the better term is RobertsCare. By volunteering as Nancy Pelosi’s copy editor, he is making her infamous line about passing the law to find out what’s in it even more true than she knew at the time.
THE OBAMACARE DECISION
- Antonin Scalia Dissents
- Kim Strassel: The ObamaCare Debate Begins Anew
- John Barrasso: ObamaCare Wins One, America Loses
The implications of all this are dangerous for the separation of powers and self-government. The Chief’s ruling will empower the executive branch to fiddle with or ignore the plain language of Congress—especially when led by a President like this one who will suspend or change laws at will. It will also encourage Congress to be even sloppier in writing legislation, knowing that the executive or a future Court will decide what it “really” meant to say.
All of this is so far removed from the Chief Justice’s claims about his jurisprudence—calling “balls and strikes,” not “writing the rules”—that it raises the question about his political motives. Was he intimidated by the liberal campaign to brand any decision President Obama disliked as partisan? If he was, then he has done something worse for the Court’s reputation by showing it can be easily swayed by political pressure.
An even more troubling interpretation would be that the Chief Justice is moving pointedly to the left on the bench, like former Justices David Souter or Harry Blackmun.We wouldn’t conclude that yet, but it bears watching.
Perhaps the least credible part of the Chief’s opinion is the false judicial modesty in his closing. “In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—‘to say what the law is,’” he writes, citing Marbury v. Madison. “That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done.” By that, Chief Justice John Marshall meant interpret the law, not rewrite it.
As for ObamaCare, Thursday’s ruling means there is no prospect for major reform this Congress. Republicans will try to chip around the edges—repealing the medical-device tax, say—but Mr. Obama will veto any repeal that reaches his desk. The GOP presidential candidates denounced Thursday’s ruling, but their challenge now will be coming up with a reform plan to replace it. Assuming the Chief Justice doesn’t rewrite it to save ObamaCare.