Will John Roberts 'Redeem Himself' on Obamacare?

The specter of judicial deference still haunts Halbig v. Burwell.


Obamacare appears to be headed back to the U.S. Supreme Court. On Tuesday the U.S. Court of Appeals for the D.C. Circuit and the U.S. Court of Appeals for the 4th Circuit issued dueling opinions on the legality of an I.R.S. rule which provides tax credits to individuals who purchased their health insurance from federally run health care exchanges.

The controversy here stems from the fact that the text of the 2010 Patient Protection and Affordable Care Act limits such tax credits to individuals who purchased their insurance from an "exchange established by a State." In other words, as the legal scholar Richard Epstein summarized, "Do the words an 'exchange established by a State' cover an exchange that is established by the federal government 'on behalf of a state'?" The D.C. Circuit held that those words do not cover the federally run exchanges while the 4th Circuit held that they do. Thus we have a clear split among the federal circuits on a legal question of undeniable national importance. Translation: The Supreme Court is likely to get involved.

How will the Supreme Court rule on the matter? Writing at National Review, conservative law professor and former Bush administration official John Yoo is optimistic that this dispute offers "a chance for the federal courts and Chief Justice John Roberts to redeem themselves" by ruling against Obamacare. According to Yoo, "If Congress wrote an inadequate, misguided, or inefficient law, it is Congress's fault. It is Congress's responsibility under our Constitution to repair the law." By contrast, Yoo continues, the Supreme Court need only interpret the law as written in order to nullify the tax subsidies now issuing via federally run exchanges. "This case will give the Chief Justice the opportunity to atone for his judicial sin of two years ago." Two years ago, of course, the chief justice of the United States invoked the principle of judicial deference in his decision upholding the constitutionality of Obamacare.

But unfortunately for the heath care law's many opponents, the specter of judicial deference still haunts this latest Obamacare battle. According to the Supreme Court's 1984 precedent in Chevron U.S.A. Inc. v. Natural Resources Defense Council, when the federal courts are confronted with an "ambiguous" statute, the default position is for the courts to defer to the judgment of the agency charged with enforcing that statute. "Federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do," declared the majority opinion of Justice John Paul Stevens. And "while agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices." Put differently, the scales should tip in favor of the executive branch when it comes to agency enforcement of questionably drafted federal laws.

Not surprisingly, the 4th Circuit relied heavily on Chevron in its ruling this week in favor of the Obamacare tax subsidies. "We cannot discern whether Congress intended one way or another to make the tax credits available on HHS-facilitated Exchanges. The relevant statutory sections appear to conflict with one another, yielding different possible interpretations," the 4th Circuit argued in King v. Burwell. "Confronted with the Act's ambiguity, the IRS crafted a rule ensuring the credits' broad availability and furthering the goals of the law. In the face of this permissible construction, we must defer to the IRS Rule."

The D.C. Circuit, on the other hand, found the relevant portions of the health care law to be perfectly clear and therefore declined to grant Chevron-style deference to the Obama administration. The law "plainly makes subsidies available only on Exchanges established by states," the D.C. Circuit held in Halbig v. Burwell. "And in the absence of any contrary indications, that text is conclusive evidence of Congress's intent. To hold otherwise would be to say that enacted legislation, on its own, does not command our respect—an utterly untenable proposition."

Is the health care law clear or is it not? And if it's not, is the I.R.S. entitled to broad deference under Chevron? Those are the questions the Supreme Court will face if (when?) it agrees to hear one or both of these cases on appeal. As for Chief Justice John Roberts, here's what he had to say about the importance of judicial deference in his 2012 health care opinion: "It is not our job to protect the people from the consequences of their political choices."

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  1. No deferrence should be made in favor of the IRS.


  2. Will John Roberts ‘Redeem Himself’ on Obamacare?

    I predict, whatever the outcome, that I will be left scratching my head and asking, ‘WTF just happened?’

  3. Bush family fixer. If you want to anticipate what roberts does, find out what the bush crime family wants.

    1. HAHAHAHAHAH. Douche.

    2. Yeah, that’s why he upheld the penaltax, right? Because the Bush ‘crime family’ gives a fuck about that, right?

      1. Yes, the Bush family does want government-controlled medicine. It’s not about the specifics of a penalty or tax, it’s about growing the government.

        1. HAHAHAHAHAH! Douche!

        2. wef|7.24.14 @ 1:36PM|#
          “Yes, the Bush family…”

          Weren’t you the idjit who used to post ‘the republican party must die!’?

    3. BOOOOOSH!!!11!!!!

  4. I am prepared for penalcredits.

    1. I like the phrases “penalfits” and “benalties.” So many fun words we can invent with one good Decision!

      1. doubleplus ungood supersuprathink

    2. Prepare for the best but expect penispenalties.

  5. The law “plainly makes subsidies available only on Exchanges established by states,” the D.C. Circuit held in Halbig v. Burwell.

    While I enjoy seeing wrenches thrown into the workings of Obamacare as much as the next person…

    Can’t any state legislature simply pass a law that says, “The state shall establish a health exchange in the following way…”, and then describe the state portal to the federal exchange?

    Unless the law is very explicit that the federal exchange is not a state exchange, I find it hard to believe that the weak word “establish” can be a fulcrum that lifts so much.

    After all, those states that have their own exchanges “established” them through some external contractors and software, and those states that use the federal exchanges “established” the back end connections to their own data and insurance specifics.

    1. Sure, a state could do such a thing. But if they don’t, what is that, chopped liver?

  6. My money’s on no. The shitbag doesn’t even recognize that there’s absolutely no moral, philosophical difference between a tax and a penalty. They’re just different freakin words.

  7. I wouldn’t bet the farm… if I owned one.

  8. As for Chief Justice John Roberts, here’s what he had to say about the importance of judicial deference in his 2012 health care opinion: “It is not our job to protect the people from the consequences of their political choices.”

    Like hell it’s not. It’s the job of the government to protect people’s rights despite political majorities and to run the country in accordance with the constitution. It’s the job of the Court to see that it does.

    1. This is one of the most infuriating things I’ve ever heard anyone say. Like anything involving government and taxes is a choice. Guy needs to get a dictionary.

      1. And thanks to him, we’ll have to add the word penaltax to that dictionary.

    2. It’s their job to protect my rights from “the consequences of their other peoples political choices.”, arrogant, condescending prick… Drink anti-freeze.

      1. I think he hates us as much as Obama does.

    3. John Roberts, with an IRS to enforce his tyranny, has declared that he has a right (not only to TAX) but “to BIND us in ALL CASES WHATSOEVER” and if being bound in that manner, is not slavery, then is there not such a thing as slavery upon earth. Even the expression is impious; for so unlimited a power can belong only to God.

  9. As for Chief Justice John Roberts, here’s what he had to say about the importance of judicial deference in his 2012 health care opinion: “It is not our job to protect the people from the consequences of their political choices.”

    I only hope he gets the irony of his statement.

    1. Well obviously the fact that for 4 years we happened to have two democrat controlled houses and a dem in presidency automatically means that the American public wanted Obamacare…

      1. And I suppose by the American public is meant everybody except those who are getting screwed or who disagree. Two wolves, one sheep…deciding on dinner.

      2. Obviously you don’t get the irony either. See my comment above.

        1. I didn’t at first; I think I do now. Choices in light of mandates – right?

          1. Yeah, I was actually referring to briann though.

            1. And I was referring to the quote, not the irony! I was doing sarcasm myself 🙂

              1. Damn it. That’s the second time this week I’ve had to recalibrate my sarcastometer.

    2. Well then I guess we might as well never review a federal law again. Court permanently in recess! Have a nice day.

  10. “It is by my order and for the good of the state that the bearer has done what has been done.”

    There, problems all solved. Fire the Supreme Court and the Congress.

  11. Not only would it be a chance for Roberts to redeem himself, but also for the four liberal, progressive hacks who upheld Obamacare last time. Fat chance of that happening.

    1. also for the four other liberal, progressive hacks who upheld Obamacare

      By their fruits shall you know them, after all.

  12. Of course not. Why would he?
    “It can be read as any damn thing I want.”

  13. As far as I am concerned, suicide is the only way Roberts could ever redeem himself.

    1. The price of redemption is sacrifice.

      The coin of sacrifice is blood.

      So, yeah, hara-kiri would get him there. Not sure what else would.

      1. Haha. Replacing the Chief of the Supreme Junta with an Obama appointee counts as redemption?

      2. Well, I’m not so tough to please. Copious quantities of hot tar with plenty of chicken feathers would be satisfactory.

  14. All signs point to no.

  15. We will see if Roberts is blackmailed again.

    1. +1 NSA

    2. Kinda makes you wonder what Holder and Obama could have on him, courtesy of the NSA.

  16. I don’t think the SC wants to take this case. Roberts is a political being but his job is not at stake on political grounds. His concern seems mostly the dignity and legitimacy of the court (which is suffering). Many assume that’s why he didn’t gut the law the first time around. It is highly implausible that he’d want to do it in this far more legally untenable way.

    It’s my understanding that the government can request an en banc review of the DC circuit decision, which would rule in their favor, leaving no split. Seems the most likely outcome. The panel outcome was rather outlandish.

    1. You think en banc review is likely? You’re not sentient, are you?

  17. My first thought is that it doesn’t matter how they rule. Whatever the decision, Congress retains the power to alter it by legislation.

    On the other hand, after a string of ruling bitch slapping Obama for executive overreach, this seems like another good opportunity.

  18. Curious if anyone here knows: has anyone ever explained how the individual mandate was not a tax for purposes of the anti-injunction act (so SCOTUS could hear the case) but was untimately found to be permissable under Congress’ taxing power? This has always seemed to me an obvious contradiction in the ruling but I have rarely heard pundits mention it. Is my understanding correct or do I have something wrong?

    1. Did the four obvious liberals grant cert on the grounds that it was a penalty, and consequently submit to the brilliance of the government’s argument that it’s a tax? I don’t even know if they wrote opinions on that nicety although Roberts did. Kagan simply thought it was Magic Money that no right-minded human would reject.

      So to answer your question, no, I don’t know spit.

      1. But anyway, a challenge is grinding along because someone somewhere is being compelled to pay an illegal tax, i.e. a tax not originating in the House. Obamacare as we know it originated in the Senate.

        1. Yeah, I got in a big argument with a liberal once about whether the Senate’s ability to “amend” covers “completely deleting a House-passed bill and substituting a Senate-created bill.” If there was any justice in our judicial system, they’d invalidate the mandate on those grounds. Of course, if there was any justice in our judicial system, SCOTUS would have found that the government can’t compel you to buy something, so maybe I’m just a starry-eyed dreamer.

      2. My question pertains to the proceedings after cert. In order for the court system to hear a case on taxes, the taxes have to have already started being collected (per the Anti-injunction Act, in my understanding). SCOTUS had a hearing on this to see if they could even hear the case and found that the mandate was not a tax (so they could hear the case on its merits), but then ruled that it was allowable under Congress’ taxing power. I’ve never seen a good explanation of this obvious contradiction. Just curious if anyone has or if my understanding is wrong.

        1. Ah. Well, that leaves us with “I don’t know spit.”

        2. It was a penalty with respect to the Anti-Injunction Act and a tax with respect to its constitutionality.

          Don’t look at me, this is Roberts’s doing. I was for the Commerce Clause argument.

          1. “I was for the Commerce Clause argument.”

            Would that be the Non-Commerce Clause, since the question is whether they government can use coercions to force commerce?

            1. Any exercise of coercion by the government forces commerce. You don’t fight a war with zero dollars.

              1. Tony|7.24.14 @ 11:49PM|#
                “Any exercise of coercion by the government forces commerce. You don’t fight a war with zero dollars.”

                That is, if not the dumbest thing you’ve ever posted, close to it.
                You think the Commerce Clause is sufficient to force people to engage in a stated commerce because of, what, war powers?
                How fucking stupid are you?

  19. Yea…giving the IRS deference, that sounds like a great idea with zero foreseeable consequences.

  20. “We have to pass the bill so that you can find out what is in it.” – no truer word have ever been spoken of Obamacare.

    1. Unless, of course, you are a 4th Circuit Judge.

  21. Sarcasm Button On”
    RE: Will John Roberts ‘Redeem Himself’ on Obamacare?
    Comrades! Do not scold Comrade Roberts for voting correctly on the Obamacare case. Socialized medicine in the Union of Soviet Socialist States of America would not be a reality without his vote. Have you forgotten that Lenin wrote how socialized medicine will accelerate the demise of a capitalist society? Now we’re all getting what all good totalitarians want…an end to choice by forced regulation of the state. Does any one really want the nefarious insurance companies to compete for your hard earned dollars? Does any one really want to keep their own doctor of choice when the wise elitists in our nation’s capital can make those difficult decisions for you? Don’t you know that socialized medicine works here? Just look at the recent stories about the Veterans Administration hospitals. Who doesn’t want to wait in line for months for surgeries, treatments and procedures? Don’t you want your government betters to decide for you if you’re worthy of life-saving medicines? Don’t you know our totalitarian elitists know what’s best for you and the collective? Healthcare is a right in any socialist state providing you’re one of the elitists. If not, then one must sacrifice themselves for the good of the collective, even if you have to die. But then, sacrificing your own life for the convenience of the state is one of many reasons why socialism is superior to capitalism.
    Saracasm Button Off

  22. ROBERTS: “It is not our job to protect the people from the consequences of their political choices.”

    BUT it is the Court’s job to ensure the peoples’ political choices operate within the constraints of the Constitution; and that includes statues crafted within the constraints of the Constitution.

    1. And if only we had a piece of paper that could limit these pesky politicians from running rough shod over freedom and liberty……………

      Oh Sheisser!!!!…..though you are correct and your post is rather kick @$$, the constitution hasn’t constrained the beast that is government, but has only prolonged the agony of the loss of freedom and further enslavement of individuals.

      Folks should have long ago come to the realization that repeating the same “government” nonsenses over and over again expecting a different result is insane.

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