Just as President Barack Obama sees the Affordable Care Act (“ACA”) as central to his legacy, so does Chief Justice John Roberts. No interpretation, however tenuous or downright wrong, is off the table for the Chief when adjudicating a case dealing with the ACA.
In National Federation of Independent Business v. Sebelius (2012), Roberts joined with the Court’s liberal wing to uphold the individual mandate as a legitimate exercise of Congress’s taxing power. To do so required much judicial legerdemain.
The constitutionality of the ACA hung on whether the monetary exaction from individuals who refuse to purchase health insurance was a tax or penalty. If the former, it would be within Congress’ delegated powers, if the latter it would not be. In plain English, the statute stated that on those who refuse to purchase health insurance “there is hereby imposed … a penalty.” No brainer, right? Wrong. Roberts conceded that Congress called it a penalty and enacted it to punish those who did not comply with the legal mandate to buy insurance, but went on to say that what they really meant was to say “tax.” Obamacare was saved.
Fast forward to June 2015 and King v. Burwell. The Court was called on to interpret the words “Exchange established by the State” found in the ACA. An exchange under the Act is an online marketplace where people can shop for health insurance to comply with the individual mandate. The importance of these five words is that under the ACA tax credits for insurance purposes are available only when buying a policy on an “Exchange established by the State.”
If states don’t establish exchanges, the ACA directs that the federal government establish the exchange. But the Act contains no provision for tax credits when purchasing insurance on federal exchanges. Only 17 states and the District of Columbia have established their own exchanges. The 34 other states have elected to permit the feds to establish the exchanges operable within their jurisdictions. Without the availability of tax credits for individuals in these 34 states, fewer people meet the economic threshold that requires them to buy health insurance. Consequently, the goal of forcing everyone to buy insurance fails.
À la Sebelius, Roberts took it upon himself to rewrite the ACA to save it yet again. The Court declared that the words “Exchange established by the State” are ambiguous. Having found ambiguity where none exists, Roberts turned to the context and structure of the Act to reach his holding. Surely, Roberts reasoned, Congress wanted the tax credits to apply to all exchanges and not just those established by the states. After much legal jargon and legislative history, Roberts and the Court’s liberal wing held that when the Act says, “Exchange established by the State,” it really means, “Exchange established by the State or the Federal Government.” This is intellectually untenable.
Sebelius and King are Chief Justice Roberts’ effort to build a legacy by piggybacking off President Obama’s featured reform. Roberts longs to be known for judicial restraint — the umpire who simply calls balls and strikes rather than participating in the contest — and thus has bent over backwards twice to save Obamacare.
He claims he is leaving the issue of health care reform to the nation’s elected representatives. Not true. Instead, unelected justices have picked up the legislative mantle and rewritten the ACA to make a penalty a tax and state exchanges to mean state and federal exchanges. Judges interpret laws; they have no place editing and revising them.
Roberts knows this but he also knows that the current Congress is not inclined to help the president save the ACA. So the Court does so. Rather than being above politics, this amounts to participating in politics to ensure an outcome desired by the president and the minority party in the Congress. This is certainly not judicial restraint, but an activism worthy of the Warren Court at the height of its power.
William J. Watkins, Jr. is an Independent Institute Research Fellow and author of Patent Trolls: Predatory Litigation and the Smothering of Innovation. (Independent Institute, 2014.)