Did John Roberts Foreshadow His Obamacare Tax Vote in TSA Whistleblower Case?

Why the chief justice could reject the government's position in King v. Burwell.


On March 4 the U.S. Supreme Court will hear oral argument in King v. Burwell. At issue is whether the I.R.S. violated the text of the Patient Protection and Affordable Care Act by allowing tax credits to issue to individuals who purchased health insurance on health care exchanges established by the federal government. According to the health care law, such tax credits are supposed to issue in relation to "exchanges established by the State."

According to the Obama administration, the I.R.S. interpretation makes better sense of the text because it prevents millions of Americans from losing tax credits in the 34 states which refused to establish their own health exchanges and left the job up to the federal government. In short, the White House says, the I.R.S. reading of the health care law serves to advance the pubic good. Thus it is in perfect keeping with the larger purposes of the federal statute. By contrast, the federal government argues, the legal challengers' narrow reading of the text would wreak havoc on the public good because it would deprive millions of people of their affordable health care—in other words, that reading would gut Obamacare.

The Obama administration recently made a similar argument about textual interpretation and the public good in the case of Department of Homeland Security v. MacLean. At issue there was whether the 2002 Homeland Security Act should be read to offer legal protections to a fired TSA whistleblower named Robert J. MacLean. According to the Obama administration, the act should not be so read. Ruling in the whistleblower's favor, the Obama administration warned, would "gravely endanger public safety" and thereby undermine the larger purposes of the Homeland Security Act.

But the Supreme Court did not buy it. The government's public safety concerns "are legitimate," conceded Chief Justice John Roberts in his 7-2 majority opinion. "But they are concerns that must be addressed by Congress or the President, rather than by this Court." As Roberts explained, "Although Congress and the President each has the power to address the Government's concerns, nether has done so. It is not our role to do so for them."

To be sure, DHS v. MacLean and King v. Burwell are different cases dealing with different federal statutes open to different interpretations. But these two cases do share a key similarity. In MacLean, Congress had the power to revise the Homeland Security Act in order to avoid what the White House saw as a disastrous result—yet Congress did not do it. Likewise in King, Congress has the power to revise the Patient Protection and Affordable Care Act in order to avoid a negative outcome—yet Congress has similarly failed to do so. So the question is, should the Supreme Court "do so for them"?

If the chief justice comes to see these two cases in that similar light, he might well reach similar conclusions. And if that turns out to be the case—which I grant is a big if—the Obama administration will be in trouble.

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  1. We’re not talking about some podunk little civil liberties/government transparency case. This is Obamacare. It’s sacrosanct, necessarily beyond the touch men, above texts and how mortals wrote them.

    1. And Roberts invented the “if you squint really hard, it could have been called a tax, even if everyone agrees it wasn’t” and save the Lightworker’s legacy achievement!

      1. The Dragon Reborn, Lews Therin Obama?

        1. [tugs braid, stomps out of room]

  2. I proudly support any effort to “advance the pubic good”.

  3. Speaking of SCOTUS, a federal district court in Texas just applied strict scrutiny to overturn bans on interstate commerce in firearms.


    Potentially a huge case, mostly because it poses the issue of what standard to apply to 2A cases.

  4. Likewise in King, Congress has the power to revise the Patient Protection and Affordable Care Act in order to avoid a negative outcome?yet Congress has similarly failed to do so. So the question is, should the Supreme Court “do so for them”?

    Under the kind of deference that Roberts supported in Sebelius, yes.

    And it is only because we have a duty to construe a statute to save it, if fairly possible, that [the individual mandate] can be interpreted as a tax.

    1. These people [SC justices] are never consistent. It’s all politics.

  5. Given that Roberts is the one who surprised everyone by allowing states to opt out of the Medicaid expansion, I would hope that he would be able to craft a similar ruling (and vote) on this topic.

    The feds can’t just force their will on the states.

    Now that I think about it, this could be construed the same way to opposite effect. The feds can’t be allowed to force the states to expand Medicaid by withholding subsidies.

    Roberts could give Obama the outcome he wants, but use the same reasoning that blocked Medicaid expansion.

  6. “…the White House says, the I.R.S. reading of the health care law serves to advance the pubic good. Thus it is in perfect keeping with the larger purposes of the federal statute.”

    Can someone please explain to me why the “larger purpose of the statute” has any bearing what-so-ever on the interpretation of that section of the law? If we follow the White Houses logic, all laws and regulations would be valid because the larger purpose of all laws (supposedly) is to advance the public good.

    1. “Teasing out legislative intentions is the proper guiding principle to use when interpreting law. Our interpretation of the law is in keeping with our understanding of the intent of the law. Our understanding of intent is the correct understanding of intent. Therefore our interpretation is consistent with the law.” – Q.E.D.

      1. Fytw principle

  7. If the Obama administration is not ‘in’ trouble it surely does cause trouble. The ACA debacle will be minor if the problems of NATO intruding on Russia and screwing over Russia’s economy are not resolved. Obama has no domestic sense and no global sense. He has run a senseless administration. If not God then someone please help us.

    1. One little problem. NATO is not just the US. The Euros have some say.

  8. Judge Roberts knows that there were many good reasons for the law to mean what it says. President Obama wrongly assumed that all states would establish exchanges so citizens could benefit. It seems that if there are no state exchanges there are no large business penalties for not providing insurance. The CBO has estimated that the penalties could reach $130 billion and cost 2.5 million jobs.

    1. One of those ‘good reasons’ it was written that way was to force the states to set up exchanges.
      “I mean, you don’t want to be the only one not getting goodies, right? Look at all the other states. Look at their voters being helped by the subsidies. You don’t want to explain to your voters why they aren’t getting the same, do you?”
      This extortion would’ve worked if 3 or 4 refused to set up exchanges. But when 34 refuse, then the feds needed to change their tune.

  9. The question is is Roberts ready to make a decision that turns a bad healthcare law into a dogs breakfast?

    That takes some courage. I haven’t seen it yet in him.

  10. I doubt if the ruling class wants to give up so juicy a goodie as the ACA. Therefore, Judge Roberts will be given the word, although not before a certain amount of theater is performed.

  11. Kennedy joined Sotomayor’s dissent in DHS vs. McLean. So I would guess that he will be one of the 5 voting in King v. Burwell to enforce the ACA the way it wasn’t written.

  12. One can only hope, but after the first supreme court challenge and tortured ruling who knows.

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