The paradoxical John Roberts and Obamacare

The Chief Justice gave President Obama two political victories on Obamacare, but in the process he's taken two very conservative stands.

Official portrait of U.S. Supreme Court Chief Justice John G. Roberts.
Official portrait of U.S. Supreme Court Chief Justice John G. Roberts.

WASHINGTON, July 1, 2015 — Chief Justice John Roberts brought the wrath of conservatives down upon himself last week when he wrote the opinion for the majority in King v. Burwell. With this opinion, the court preserved the Affordable Care Act (Obamacare), keeping federal subsidies to people who buy their health insurance on the federal exchange intact.

Had he changed his vote, Obamacare would be effectively dead.

This was Roberts’ second time to save Obamacare. The first was three years ago, when Roberts recast Obamacare’s individual mandate as a tax. Thirteen of 21 constitutional law experts interviewed by Bloomberg expected Obamacare to be gutted on a partisan 5-4 vote by the court, while 19 of 21 thought that it should be preserved. Their thinking was influenced by the apparently settled notion that the commerce clause allowed Congress to compel people into economic transactions, including the purchase of health insurance.

Roberts surprised them and President Obama as well. He gave Obama his policy victory on the individual mandate, but at the same time he clamped down hard on the commerce clause. Roberts wrote then:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to ‘regulate Commerce.’

When Obama opposed Roberts’ nomination to the Court in 2005, he said that he did it out of concern for Roberts’ philosophy on such issues as “whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Roberts answered him in 2012 as Obama feared he would, with a strong “no.”

Roberts’ opinion in 2012 was a blow to conservatives who hated a specific policy. That policy survived. But at the same time, conservatives won a much broader philosophical victory, a strong barrier against expanded use of the commerce clause. The precedent there was as big a victory for conservatism as striking down the individual mandate would have been.

What Roberts did last week involved a similar split, delivering a general win to conservatives while granting a policy win to Obama.

Much more important than the immediate conclusion of a Supreme Court opinion is the logic behind it. It is possible to win a policy victory while losing a philosophical war. For instance, conservatives opposed to abortion might find their joy turn to horror if the court banned abortion, but reasoned its way to that outcome by arguing that the state did, in fact, have final authority over all aspects of reproduction. How you get your victory is every bit as important as the victory itself.

With his opinion on Burwell, Roberts shifted power from agencies like the IRS and EPA onto the courts; Congress has shifted a great deal of its own power onto those so-called “administrative agencies,” which now have the authority to interpret the law broadly, then issue regulations to give their interpretations the weight of law. The power of those agencies can now be much more easily circumscribed by the courts.

The general expectation before last week was that if the court upheld the legality of the federal subsidies, it would appeal to Chevron deference. The principle of Chevron deference is named for a 1984 Supreme Court case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The case dealt with the way the Environmental Protection Agency interpreted the Clean Air Act amendments of 1977.

Chevron deference means that, even if the court finds that there are better interpretations of the law than those applied by an administrative agency, the court must defer to the agency if its interpretation is at all reasonable. The EPA, the IRS and every other administrative agency is allowed to interpret the law as it sees fit, so long as its interpretation is reasonable.

The concept of “reasonableness” rests on ambiguity. Laws can’t cover every possible contingency; legislators can’t possibly imagine every situation that might occur that is relevant to the law.

Where the law is unambiguous, the clear letter of the law is the law. Where the law is ambiguous, the administrative agency must interpret the law for itself, so long as its interpretation is not “arbitrary, capricious, or manifestly contrary to the statute.” That is a very low standard, giving the agency extremely wide latitude to decide for itself how to enforce the law.

Roberts pulled back on Chevron deference. He wrote in last week’s opinion:

When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. … This approach ‘is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.’ … ‘In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.’

This is one of those cases. The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. … It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. … This is not a case for the IRS.

Roberts’ reasoning holds two important implications. First, because the court has interpreted the law itself, a change in administrations won’t change the interpretation. If a Republican is elected in 2016, he can’t decide that federal subsidies will only be provided to people who buy health insurance on state exchanges. The interpretation is now set until the law is changed or repealed, or until the Supreme Court returns to this issue and changes its interpretation.

Second, as we already noted, the court has suddenly circumscribed the power of future administrations to interpret any law. Whether the courts will pursue Roberts’ precedent to assert limits on executive power remains to be seen, but Roberts’ opinion gives them that option. They need no longer simply accept that the administration’s approach is “reasonable,” hence inviolable.

This, like Roberts’ restrictions on the use of the commerce clause, is potentially an important gain for conservative government. Only potential, however. The executive branch can be counted on to act to protect and expand its authority. Power goes where it’s used, not where statute or even court opinions say it belongs.

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  • acmaurer

    Well written. I get Roberts’ argument in Burwell, but how does he get from “the IRS

    “has no expertise in crafting health insurance policy” to “the courts do?” How does he–and the rest of the majority–assume the Congress meant something the exact opposite of what they plainly wrote? There’s no ambiguity there. The Congress clearly meant for the states to carry out their mandate in the same way they heap other mandates on the states. The subsidies were the carrot to get the states to create the exchanges–but most of the states didn’t bite. The whole scheme should have been allowed to fail.

    Regarding the 2012 case, I understand the narrowing of the commerce clause wormhole, and it’s a good thing. But here again Roberts outsmarts himself. If it’s a tax, Congress has no authority to levy it. Again, Roberts is right that it is a tax but the very fact that it’s a capitation tax means Congress has no authority to levy it. (Art 1 Sec 9) This is why they needed to pass the 16th Amendment so they could tax income and why the administration bent over backwards to NOT call it a tax.

    Obamacare is fundamentally unconstitutional because the bill they passed didn’t originate in the House (Art 1 Sec 7). No one’s even ruled on that yet even though it is well known.

    What Roberts has clearly told the American people is that if we want this law repealed–and a majority always has–then we we have to do it ourselves. We cannot count on the courts to do it for us.

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