The inside of John Roberts’s head
R.J. Lehmann, a senior fellow at R Street, a free-market think tank, sees a big smaller-government upside to Mr Roberts’ Obamacare ruling. “Roberts has just opened a huge new avenue for challenges to administrative rulemaking”, Mr Lehmann writes. “From labour laws to environmental standards—not to mentions reams and reams of tax rulings—there’s no shortage of federal rules” now open to challenge. Indeed, conservatives and libertarians may soon happily come to rely on the Obamacare ruling in their quest to rein in an unruly executive bureaucracy. If they do so, they’ll be conceding, at least implicitly, the model of the division of powers Mr Roberts has so cagily persuaded the court’s liberals to sign on to. But this model is manifestly one of the legislature’s rule-making supremacy, and the court’s secondary, interpretive authority. Congress legislates. The executive gets to decide what ambiguous legislation means only if the decision doesn’t have important economic or political consequences, or if congress has granted that authority. Otherwise, it is up the court to settle what the law says.
