Conservatives and libertarians aren’t very happy with John Roberts right now, and for good reason. For the second time , the Bush-appointed chief justice has handed down a decision that preserved Obamacare, that ultimate bête noire of the right.
I’m no fan of Obamacare, mostly because I’ve always failed to see how you can solve what largely are problems in insufficient competition among and supply of health-care services by legally mandating more demand. But there are subtler aspects to both of the Roberts decisions that many on the right are missing, and for which they may actually find themselves thankful in the long run.
I’m not here speaking primarily of the political ramifications, though there is, of course, that as well. Obamacare was just past the trough of its popularity when the 2012 NFIB v. Sebelius  decision came down, and it’s feasible that, at the time, the American public would have digested a contrary ruling fairly well. But had the court’s most recent ruling this week in King v. Burwell  gone the other way, the fallout would have been disastrous for the 37 Republican governors who would be forced to choose either to commit suicide with their base by agreeing to create a state health-insurance exchange, or else face the consequences with the broader electorate that would come with ripping away the subsidies that millions of voters need to buy coverage.
But those sorts of considerations are obvious and, at this point, fairly well-covered ground. What I’m talking about instead are the long-term legal consequences of Roberts’ two decisions. There is a way to see both as part of what amounts to a “long con,” a kind of 11-dimensional chess, in which he agrees to give away a near-term policy outcome in exchange for ripping apart 100 years of liberal jurisprudence on the administrative state.
In the NFIB decision, Roberts infamously joined the court’s other conservatives in finding that Congress did not have authority under the Commerce Clause to compel citizens to purchase health insurance. Roberts instead wrote his own decision (joined, ultimately, by the liberal wing of the court) upholding the law as constitutional under Congress’ taxing authority. The assessments that those who fail to buy coverage would have to pay were not (as the plain language of the statute described them) legal “penalties,” but rather a tax on the status of being uninsured.
This was an unexpected decision, not only because it required some remarkable linguistic contortions to reach, but because that was never an argument the administration had put forth as central to their defense (and in earlier cases in the lower courts, had explicitly rejected). In the immediate aftermath of the decision, it made little difference to conservatives how Roberts had arrived at his ruling. If anything, the fact that he recognized the Commerce Clause justification as invalid, but upheld the law nonetheless, was seen as just another sign of his duplicity.
But was it really? It’s important to remember that the decision came in the context of a nearly century-long streak of mostly bad decisions on the nature and meaning of the Commerce Clause. Initially granting Congress authority “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” the clause has been so expanded that it now essentially grants Congress authority to regulate any action, anywhere. In 2005’s Gonzales v. Raich , the court found that Congress’ authority over “interstate commerce” applied even when the activity in question (the growing of marijuana for personal consumption by a patient with a valid doctor’s prescription) involved no commerce at all and was limited solely to a single state (California) where the behavior in question was completely legal.
Thus, if nothing else, NFIB set some limits on what the Commerce Clause means, even if that limit is nothing more than: “Congress cannot induce commerce for the sake of regulating it.” Within a year of its filing, the decision already had been cited  in a number of challenges to federal statutes, including the Sex Offender Registration and Notification Act and the so-called “assault weapons” ban. One should expect many more in the years ahead.
The Burwell decision is arguably even more sneakily subversive. For most legal observers, it was obvious a decision in favor of the administration almost certainly would rely on the doctrine of “Chevron deference.” First elucidated in the landmark 1984 case Chevron U.S.A. v. Natural Resources Defense Council , the principle holds that, when an executive branch agency is required to interpret statutory language whose meaning is ambiguous, courts should defer to that interpretation unless it is shown to be unreasonable.
This seemingly dry principle sets a very high bar for those who would seek to challenge administrative rulemaking. Its application frequently has meant that, even where courts concede that it is obvious a bit of language has another, more natural meaning than the one promulgated by a federal agency, so long as the agency’s interpretation is a feasible one, it must stand.
If Chevron deference is applied in the Burwell case, it’s a slam dunk for the administration. The initial petition was dismissed at the District Court level, where it was ruled unambiguous that the Affordable Care Act made federal subsidies available through the Federal Exchange. The Fourth U.S. Circuit Court of Appeals conceded that the language was ambiguous but, applying Chevron, deferred to the IRS’ interpretation of the statute.
Though Roberts’ decision ends up with the same result as those earlier rulings, he got there a very different way. Notably, he found that Chevron deference would not apply in this case:
The tax credits are one of the Act’s key reforms and whether they are available on Federal Exchanges is a question of deep ‘economic and political significance’; had Congress wished to assign that question to an agency, it surely would have done so expressly. And 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.
The bit about carving out questions of “economic and political significance” is a pre-existing limitation on Chevron, but the verbiage concerning the IRS’ lack of “expertise” in this policy area is new, and potentially significant. Implied is that, had Congress intended such a big question to be decided by an executive branch agency, it would have explicitly chosen one with experience in the subject matter, such as the Department of Health and Human Services.
This is clearly an attempt by Roberts to rein in executive agencies’ reliance on Chevron to reach whatever finding happens to be most convenient to them. In a nutshell, Roberts didn’t say: “We should grant the IRS deference to decide what the law says.” Rather, what he said was: “WE, the Supreme Court, decide what the law says, and it so happens it says what the IRS said it says.”
It may seem small consolation to Obamacare haters, but there’s actually a big difference between those two findings, albeit one that largely will be missed by nonlawyers. Roberts has just opened a huge new avenue for challenges to administrative rulemaking, particularly where a plaintiff can demonstrate the unlikelihood that Congress would have delegated a particular decision to the specific agency that ultimately made it. From labor laws to environmental standards — not to mention reams and reams of tax rulings — there’s no shortage of federal rules that potentially could fit the bill.
I know it’s hard to believe now, but the day may come when those on the right will thank John Roberts for what he has set in motion.
- “For the second time”: http://www.nytimes.com/2015/06/26/us/obamacare-supreme-court.html?_r=0
- “NFIB v. Sebelius”: https://www.law.cornell.edu/supremecourt/text/11-393
- “King v. Burwell”: http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf
- “Gonzales v. Raich”: https://scholar.google.com/scholar_case?case=15647611274064109718
- “had been cited”: http://blogs.law.harvard.edu/billofhealth/2013/11/18/applying-nfib-v-sebelius-in-the-federal-circuits-analysis-of-the-case-law/
- “Chevron U.S.A. v. Natural Resources Defense Council”: https://www.law.cornell.edu/supremecourt/text/467/837