For the second time in three years, citing judicial deference, the Chief Justice has saved the Affordable Care Act. But what is motivating the Chief is not his fidelity to Article III, but a clearly articulated vision that the promise of expanding health insurance is beyond the normal rules of judicial review. In short, Obamacare is special.
In NFIB v. Sebelius, Chief Justice Roberts found that Congress lacked the power to compel people to purchase health insurance under its commerce powers. He also concluded that Congress decidedly did not levy a "tax" on those who lack qualified insurance, but instead imposed a "penalty." (All Democrats from the President down insisted the law was not a tax to avoid the political blowback). However, after clearly explaining why the individual mandate was unconstitutional, the Chief Justice applied what he called a "saving construction."
"And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction."
In other words, if the Court can plausibly pretend that the word "penalty" is actually the word "tax," and that would "save" the Affordable Care Act, then the Court should read in the statute what Congress did not write. The Chief Justice defends his deference--though in truth it amounted to rewriting a statute to one Congress could have never enacted--as grounded in the doctrine of constitutional avoidance. He insists that the Court cannot abdicate its role as a Court.
Our deference in matters of policy cannot, however, become abdication in matters of law. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress's policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed.
But trumping that judgment is the consideration that it is for Congress, and not the Courts to make policy.
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
At bottom, the Chief Justice voted to save the very individual mandate he found unconstitutional. But what warranted such deference? At the time, I--and many others--speculated that the Chief Justice was loathe to invalidate a major piece of social legislation, especially four months before a presidential election. However, these were mere theories, and nothing the Chief Justice wrote would directly support it. Maybe Roberts was merely adhering to his well-worn mantra of judicial deference that should apply in all cases--the Affordable Care Act was no different. Fast-forward three years, and the Chief's decision in King v. Burwell makes this alternate rationale very tenuous.
Unlike NFIB, King v. Burwell was a case of statutory interpretation rather than of constitutional interpretation. The question presented was whether the federal government could pay subsidies in ACA exchanges "established by the state[s]." The first 20 pages of the Chief's offered a workmanlike exercise in how to read a statute in context, and why the literal text didn't necessarily control. I didn't find it persuasive, but had the opinion ended there, I would have been only slightly disappointed.
Then it took a sharp turn for the worse. On the penultimate page, the Chief acknowledged that the "arguments about plain meaning . . . are strong." (You would think this would go on the first page, not at the end). Then, in the final paragraph , we see what is at the heart of the decision, and what I suspect was driving his "saving construction" in NFIB.
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress's plan, and that is the reading we adopt.
This is the dicta that will sink a thousand Obamacare ships.
Even though the plain text of the statute was "strong," the Chief Justice was willing to put a thumb on the government's scale for one simple reason: the challengers' side of the scale would not "improve health insurance markets." It's as if the Chief stopped reading at Title I of the Act, which says: "Qualify, affordable health care for all Americans." But then the law goes on for another 1,000 pages, as it balanced: (1) expanding access to health care, (2) keeping costs low, while (3) respecting state sovereignty. The never-ending ACA (that no one read) was reduced to a bumper sticker (or to borrow a phrase from Justice Scalia's other recent dissent, a "fortune cookie").
It is unmistakeable in my mind that similar reasoning motivated the Chief's decision in NFIB. Had the Court invalidate the individual mandate--and left the rest of the ACA intact--it would have created an adverse selection death spiral, as healthy people would lack the incentives to enter markets, and prices would skyrocket. In King, had the subsidies been blocked in 34 states that did not build an exchange, a similar death spiral could have been triggered (assuming Congress didn't fix it). In both cases, ruling against the federal government would not have "improve[d] health insurance markets."
The modus operandi of the Chief Justice is that Obamacare--or as Justice Scalia called it "SCOTUScare"--is special. A Justice who professes such fidelity to the rule of law has one set of rules for normal laws--such as the Voting Rights Act, which he had no problem gutting in Shelby County v. Holder--and a different set of rules for super laws. Justice Scalia's dissent sums up the reasoning well:
"Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved."
Twice the Chief Justice has been confronted with winning arguments--a constitutional argument and a statutory argument. Twice he rejected those arguments because he was motivated by his self-imposed Hippocratic oath: "do no harm" to Obamacare. And twice, he has rescued the law from the brink. This deference is not based on the proper role of a judge, but on the Chief Justice's determination that Obamacare's aspirations are more important than what the law, or the Constitution actually says. Alas, the buck stops here. The Chief sent a clear message to the lower courts--if there are any challenges to the ACA, apply the Obamacare canon of construction, and move on. It is unlikely that the Court would even bother accepting any future fundamental challenges to the ACA. The buck stopped here.