Chief Justice Roberts Saves Obamacare a Second Time

By
John Roberts
Stay healthy, America.Photo: Pablo Martinez Monsivais/© Corbis. All Rights Reserved.

With Chief Justice John Roberts and Justice Anthony Kennedy joining the liberal wing, the Supreme Court handed the president a huge win as it upheld the Affordable Care Act’s provision of health-care subsidies in states that did not set up insurance exchanges, and instead allowed the federal government to do it for them.

The 6-to-3 ruling in King v. Burwell marks a watershed victory for the Obama administration and will help define Roberts’s decade-long tenure as chief justice, as a Republican-controlled Congress has proven incapable of providing a legislative fix for a law they have described as a failure from the start. Millions of Americans too poor to pay for insurance stood to lose subsidies with an adverse ruling.

In a democracy, the power to make the law rests with those chosen by the people,” Roberts wrote in the 21-page ruling — relatively sparse in light of all the media frenzy and conservative doomsday surrounding the decision. “Our role is more confined — to say what the law is … 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.”

The fact that Roberts authored the King ruling — which rested on statutory grounds — makes sense in light of his prior vote in NFIB v. Sebelius, a constitutional challenge that ended up saving the law under the Constitution’s grant of taxing power to Congress. But more remarkable still was that he managed to bring Kennedy along for the ride; the centrist justice dissented in Sebelius, but his skepticism at oral arguments in King toward the view that Congress wrote the law to coerce the states to set up insurance exchanges may have convinced him to join the majority. That “serious constitutional problem” was something best left untouched, Kennedy suggested then.

To sustain their challenge, the plaintiffs in King relied on a strictly textualist reading of the complex health-care statute, focusing on an phrase of the law that, read in isolation, appears to make federal tax credits available only in the 14 or so states that have set up their own insurance exchanges, and not in the vast majority of conservative states that have refused to create them.

Correctly, Roberts and the majority rejected that reading, by looking at the law’s “interlocking” structure — a complicated network of provisions that he conceded were the product of “inartful drafting,” and that, read in isolation, “would make little sense.” But citing an opinion by none other than Justice Antonin Scalia — who led the dissenters in King — Roberts pointed out that the court “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

That’s statutory interpretation at its purest, and an exercise that the court has engaged in repeatedly in various contexts this term — including an important case interpreting the 1968 Fair Housing Act announced right before King. Roberts, again: “Reliance on context and structure in statutory interpretation is a subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.”

Interestingly, the Supreme Court declined to go the route of Chevron deference, a mode of statutory interpretation that gives leeway to federal agencies in interpreting ambiguous laws. Here, Roberts noted that it was “especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort.” Instead, he reaffirmed that it was “our task to determine the correct reading of” the contested provision — which in the long term matters because it represents the court’s final interpretation of the law and a future Republican administration will be foreclosed from reading it differently. 

Scalia, who has long espoused strong views on textualism, dissented even against his own jurisprudence of reading statutes as a whole rather than in isolation. Rejecting the government’s argument that the law makes subsidies available in all states — an outcome he called “absurd” — he dinged the majority for rewriting the law despite its text. “We should start calling the law SCOTUScare,” he deadpanned. (He reportedly read his dissent from the court’s bench, which occurs occasionally with controversial cases.)

Without seeming to forget his first loss in 2012, Scalia — who was joined by Justices Clarence Thomas and Samuel Alito — accused the court of “somersaults of statutory interpretation,” and lamented that future litigants and courts will remember these horribles for posterity, much to the disgrace of “honest jurisprudence”: “And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites,” he wrote. Elsewhere, he called the court’s analysis “interpretive jiggery-pokery” and “pure applesauce.” 

Roberts quickly shot down the three conservatives’ fears, and cited their own joint dissent in the first Obamacare case, which recognized the legislative aims of the health-care law. “Without the federal subsidies … the exchanges would not operate as Congress intended and may not operate at all,” the four justices wrote at the time.

But in the end, and for a second time in three years, Roberts handed Obama a big win. Federal subsidies survive. A crisis of government has been averted. The separation of powers is alive and well. And best yet, the Supreme Court didn’t even have to entertain esoteric questions of legal “standing,” unconstitutional coercion, or government overreach to resolve the issue. The decision in King was — as it should’ve always been because the challengers’ argument was preposterous from the start — an easy call.

The chief can now go enjoy his vacation in Japan.