Our chief justice has been interesting to watch. His swing-vote with the liberals in National Federation of Independent Business vs. Sebelius (2012) earned him my respect, and not simply because I support Obamacare. The Supreme Court doesn’t exist to rule in favor of what we like, or against what we dislike, only to determine the constitutionality of laws under fire.
Roberts correctly recognized that Obamacare was a constitutional exercise of Congress’ taxing power. And we should be clear about this, since many people continue to dispute the issue: Obamacare is certainly a tax: it’s an amendment to the Internal Revenue Code; it’s calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger; it raises revenue; it serves the general welfare, and is not a criminal penalty in disguise. To object that the health care mandate was not written as a tax but as a penalty, and that the bill’s authors and administration denied that Obamacare was a tax, doesn’t settle the issue in advance. The authors were wrong in their denial.
Intentions disproven by results are empty. If I intend to write a sonnet, but I write a limerick, the end result is a limerick, and my intentions bloody failed. The end result of Obamacare was the absolute functional equivalent of a tax. If Roberts read something into the text of the law that wasn’t originally meant, he saw what was clearly there irrespective of that, and that’s why the 2012 case to uphold Obamacare was constitutionally solid.
What made that decision even more impressive is that Roberts is conservative-leaning and not wild about Obamacare. He went against his personal biases in upholding the mandate, thereby showing the kind of integrity that I believe should be emulated more often on the supreme court.
That was then. Flash-forward to the supreme court decision issued last Thursday, King vs. Burwell, in which Obamacare was saved a second time, in the 36 states that don’t participate in insurance exchanges that provide eligibility for tax credits. The language of the statute provides eligibility for such credits only to people with state-operated exchanges (14 states provide this), but Roberts claimed that the disputed clause is ambiguous and so should be interpreted in a more lenient manner — and by himself.
The Wall Street Journal criticizes Roberts as follows:
“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.”
I don’t like having to agree with this, but I do. Roberts assumed executive and legislative roles in order to deal with a tension between a statutory text and the statute’s structure and purpose. But in such cases, the rule of law is clear: the government takes priority. According to the Chevron doctrine, when a statute is ambiguous, courts should defer to the interpretation of the implementing agency. Roberts didn’t do that; he arrogated the role to himself.
I can sympathize with the reason for his judiciary arrogance. He and the liberal justices were obviously trying to save Obamacare in a quick and dirty way so that we wouldn’t be left with a mess in 36 states. Millions of people could have lost their health insurance subsidies. I’m personally happy that they have been rescued, but I’m not impressed with how it was done.
What makes the chief justice look twice as bad is his dissent only one day later in Obergefell vs. Hodges. On Friday he sided with the three conservative justices against gay marriage precisely on grounds that “the supreme court is not a legislature”. That’s Pot Roberts calling out Kettle Liberals — and the kettle isn’t as black as he thinks. The question of gay marriage involves the logical extension of constitutional rights, liberties protected by the Fourteenth Amendment’s Due Process Clause, and basic discrimination issues related to the Equal Protection Clause. The supreme court has long held that the right to marry is protected by the constitution — as in Loving vs. Virginia (which invalidated bans on interracial unions) and Turner vs. Safley (which held that prisoners could not be denied the right to marry).
Roberts got his cases backwards. By rights, he should have dissented in Thursday’s Obamacare decision, and said yes on Friday to the constitutionality of gay marriage. I don’t really like complaining about Thursday’s decision when I’m pleased by the end result, but the interpretive role of the supreme court is a critical one, and unlike his earlier decision in 2012, Roberts now seems to have well exceeded his judiciary role. It sets a bad precedent.