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The SCOTUSCare Chief

John Roberts

I spent most of my post-King yesterday trying 1) to suspend disbelief; 2) suppress laughter; and 3) explain this to my kids. Epic fail at all fronts. My hunch, or at any rate my fear, is that this will turn out very badly for the Chief—an honorable man, and a capable jurist who really should know better. Liberal commenters on King picked up immediately on the key point: this is a huge brush-back to any challenge to the Affordable Care Act. There’s an argument—not terribly convincing to my mind, but at least colorable—that the IRS interpretation of the ACA (“by the State” means “by the federal government,” and “under section 1311” means “under section 1321”) is permissible. Barely. And there may be an argument that the ACA, as actually written, is way too harsh on states, so Congress cannot have meant it. But the Chief’s opinion doesn’t take either course. Instead, it hardwires the administration’s position into the statute: it’s ambiguous for sure, but we know what it means. No future administration can adopt a different interpretation.

What this means in plaintext is: shut up. We the Court gave you the right-wing people a consolation prize the first time around: we re-wrote the statute one way to save it, and then we re-wrote it another way to help the states on the Medicaid jazz. NFIB v. Sebelius. You ingrates didn’t get the message; and so now, we’ll make you worse off than you would have been, had this lawsuit never been brought: this law now means what we say it means. Don’t try this again. The opinion doesn’t read like John Roberts. It reads like a hybrid between Barack “It’s the Law Unless I Suspend It” Obama and William “Shut Up He Explained” Rehnquist.

My beef, and I strongly suspect the tragedy, isn’t the Court’s departure from hallowed canons of textual construction (we can argue that point on this case until the lights go out, and in any event everyone knows the canons won’t hold in big cases). The problem is the horrendous misunderstanding of how this country works. You can tell people to buy insurance and states to run exchanges. But many won’t, and then the game is up.

And you can signal to lower courts, as the Court now has, that they should bury ACA cases on any pretense whatsoever. Respectfully, though: the notion that a stern warning from the Court will turn America into Denmark is absurd. The genius of this country is that we always have a Plan C and D. (I even know what they are, on account of the great privilege of serving on the Board of the Competitive Enterprise Institute. Indiana Attorney General Tom Fisher has already announced pending plans E and F; I embrace those, too.)

And there’s one more, related, and yet more harrowing point: maybe, Justice Scalia snarled in this dissent, we should call Obamcare “SCOTUSCare.” The truth is something that Justice Scalia can’t really say: it’s not the Court but the Chief. He alone wrote all those opinions, and he alone—not the Court—now owns the ACA.  What sentient human being would want that fate?

Unlike, perhaps, some of my fellow combatants, I entertain no doubts about the Chief’s integrity. His interest is the institution’s as he see it. He gets the law wrong because at some deeper level he gets this country wrong.

Reader Discussion

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on June 26, 2015 at 09:30:42 am

As I see it,somebody,somewhere must have something on Justice Roberts and are using that leverage to "help" him in his judicial decisions. There is no other explanation for his irrational decisions. This,again,proves that the "Deep State" is the real power in America as they have most of the politicians,judges and important bureaucrats already bought and paid for.

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libertarian jerry
on June 26, 2015 at 09:56:38 am

Oh spare us.

The 2d Amendment reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” But in District of Columbia v. Heller, Scalia tells us that this means exactly the opposite of what it says: The rights of the people to keep and bear arms can be infringed -- but only those arm that might be relevant to a militia. If you want a handgun, go crazy.

So for Scalia to now whimper about “plain meaning” is just pathetic.

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nobody.really
on June 26, 2015 at 10:02:49 am

Have you never heard of the democratic party canon of statutory interpretation? Because this was a democratic statute, there is an irrebutable presumption that Congress intended to tax, regulate, and subsidize everything. I think Scalia and Garner forgot about this one.

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Jimmy C
on June 26, 2015 at 17:08:34 pm

While much, much remains to be written (and vented) on the issues of King vs. Burwell, we might consider how the "Opinion" (which will probably NOT be decisive)
illustrates dual functions of the SCOTUS in dealing with what are now our two functions of governance: The Federal Administrative State [FAS] and the Constitutionally delineated authority of the Federal Government, the basic governmental mechanism(s).

The FAS is a structure of authority from Rules of Policy (legislation, regulation, administrative fiats, etc.) which provide its general delineations, subject only to popular or judicial limitations (which determine their having "Force of Law").

In the *function* of applying (and interpreting) those Constitutional delineations, the Judiciary operates within the confines of those delineations and the purposes or intent of those delineations. The purposes or intents of the Rules of Policy, without regard to their consequences to the FAS, its purposes, functions, or operations, (should) have no role in that function.

When we move to the function(s) [?] of the Judiciary in treating with the operating effects of the FAS or its sources in Rules of Policy, what are those functions, what have they become - and in response to what? It appears that those functions have now expanded to encompass interpreting the Rules of Policy themselves (rather than their relation to Law) in terms of intents and purposes - and occasionally, operative effects.

So long as popular support (probably more like "demand") continues for the FAS, the dual functions of the SCOTUS are likely to continue; but, to take differing intellectual and political courses; one being a bit more "political" than the other.

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R Richard Schweitzer
on June 26, 2015 at 17:13:41 pm

It appears we have two forms of governance and that has brought forth two supreme judicial functions (in one body).

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R Richard Schweitzer
on June 26, 2015 at 19:31:12 pm

I am afraid history will prove your claim correct, assuming the victors are not able to write the history of the events.

A lot of electronic data has been gathered on everyone in the US by organizations such as the NSA, especially concerning the powerful people. It only takes one little slip, one poorly worded email, one questionable web site visited, perhaps while mildly intoxicated, to gain enough leverage over someone to gain influence if not absolute control over their key decisions.

Add to that the weaknesses that we are all prone to, along with the ability to surveille with astounding technical prowess, and it becomes difficult for justice to prevail. None of us are saints after all, not even Chief Justices.

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Scott Amorian
on June 27, 2015 at 09:48:43 am

"It appears that those functions have now expanded to encompass interpreting the Rules of Policy themselves (rather than their relation to Law) in terms of intents and purposes – and occasionally, operative effects."

And why not, eh!!!
This is just a natural consequence of a power seeking governmental branch - after all, the Black Robes have arrogated to themselves the Legislative Power (see any recent ruling) - why should they not also take it upon themselves to commandeer the Executive's bureaucratic mechanisms AND define what these humble executive functionaries REALLY mean and intend!!!

All the better to implement the Black Robes own policy preferences and to demonstrate that superior wisdom which they no doubt possess.

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gabe
on June 27, 2015 at 10:29:28 am

Heck, I guess I will not be getting that Abrams tank that I have been saving for.

It is interesting, however, that so many folks seem to link "keep and bear arms" *directly* to membership in the militia. But this is not so - the right stems from a more basic premise - defense of one's person. Consequently, there does not appear to be anything, to my mind, problematical with limiting my opportunity to posses that shiny new Abrams tank. I suspect that the "link" to the militia is simply this: Having a populace that is familiar with defense and weaponry would seem to make it easier to fill the roles of the militia with some level of competent members. After all, not many New England farmers hauled field artillery pieces around in the late 18th century.

I think Scalia can not be said in this case to be guilty of that which he currently rails against.

But it sure would be cool to have a tank as a piece of "garden art" - right next to my tree-roses. Nobody (or anybody) may send donations for my tank to this blog.

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gabe
on June 28, 2015 at 08:48:43 am

Not that it bears on anything, but I note in the background of the photo, my old colleague Pam Talkin, whom I knew as Clarence Thomas's chief of staff, when he was EEOC Chairman. She is now head of the SC Marshall's Office.

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Ken Masugi
on June 28, 2015 at 13:57:04 pm

Some quick comments for Mr. Greve:

1.) The Affordable Care Act is not the same legislation that was signed into law in 2010, and it will not be the same legislation two years from now. All of the exceptions, tweaking, tortured interpretations, dubious redefining, public skepticism, bureaucratic detritus and poor drafting will have this boondoggle morphing like the glop inside a lava lamp as reality and entropy reshape it. Chief Justice Roberts is not so much an architect or enabler, as much as a befudddled acolyte, naively proposing epicycles trying to save the heliocentric universe.

2.) The Affordable Care Act is an unsustainable subsidy of the wealthy by the less wealthy for the unavoidable fact that advanced age is highly correlated both with greater wealth and worse health. It also creates blatant subsidies for the benefit of very powerful financial interests: insurance companies, pharma, and god-awful for profit hospital and nursing home corporations. It is these monied interests that support the ACA in the face of public skepticism, and it benefits these interests to do such things as limit provider panels, manipulate formularies, shunt sicker patients into lower cost facilities and treatment regimens and determine lengths of stay based on financial criteria. These forces will eventually create a tiered healthcare system in which the ACA will be a synonym for medicaid. The market distortions of the ACA cannot be undone by legislative or judicial declaration.

3.) The greatest damage that Roberts has done to the Court is to legitimize the concept that the effects of laws need not be predictable; that it's okay if people cannot trust the plain language of the law if a court wants to torture that language in the service of some other interest. Predictability is the whole point of stare decisis, written laws and principles of interpretation. It is part of a functioning society that citizens know the meaning of laws they are subject to, and which control those citizens' interactions with the state and with each other. For a Court to declare that, in effect, every word in a statute carries an asterisk* undermines the benefit of laws and courts. If "State" means one of fifty political entities within the United States, or the federal government, or a volleyball team, or only a particular agency, or perhaps an individual person, as fits the Court's taste, then our laws may as well be unedited text messaging autocorrect.

*"Unless a Court should declare that it means something else entirely to serve particular interest of the jurist.

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z9z99
on June 28, 2015 at 13:59:52 pm

Geocentric universe.

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z9z99
on June 28, 2015 at 15:32:03 pm

Z:
Absotively!!!!

Roberts 2nd quest to "save" or preserve the integrity of the Court has done nothing except lessen the esteem in which people (ought to) hold it.

I suppose that in the future we must refrain from appointing anyone named Roberts to the venerated status of Black Robe - wasn't the Chief Black Robe during the FDR court packing scheme named Roberts also - and did he not also cave in order to preserve the integrity of the Court.

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gabe
on June 30, 2015 at 10:09:21 am

It is interesting, however, that so many folks seem to link “keep and bear arms” *directly* to membership in the militia. But this is not so – the right stems from a more basic premise – defense of one’s person.

Great. You're entitled to that opinion. And you might even be able to marshal support for that opinion with reference to the context within which the 2d Amendment was drafted and adopted, and the contemporaneous statements of the drafters, etc. But this means you are interpreting the text -- trying to understand it within a context, not appealing to some mythical "plain meaning."

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nobody.really
on June 30, 2015 at 12:17:51 pm

Nobody:

Fair enough - tis' true.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.