Scotus Fuctus on Obamacare

Roberts arrogates god-like powers to himself


So the Supreme Court ruled in favor of handing out subsidies through federal exchanges in King vs. Burwell, once

rtcosmin / Foter / CC BY-NC-SA

again letting the administration snatch victory out of the jaws of defeat.

What is interesting in a quick skimming of Chief Justice John Roberts' opinion is that he does not deny that the text of the law is thoroughly ambiguous. He also doesn't deny that administrative agencies — aka the IRS in this case — shouldn't have the final word in interpreting this ambiguity as per stare decisis considerations. Indeed, he goes out of his way to reject the 4th Circuit Court's reliance on the Chevron test — the notion that in instances of textual ambiguity, courts must defer to the interpretation of administrative agencies in interpreting a statue — as binding in this case. Why? He notes:

When analyzing an agency's interpretation of a statute, we often apply the two-step framework announced in Chevron…This approach "is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps…In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation…This is one of those cases. The tax credits are among the Act's key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep "economic and political significance" that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly.

So if the text is ambiguous and the court can't defer to administrative agencies, then what should it do? A genuine opponent of judicial activism as conservative justices are supposed to be, would find a way to get Congress to clarify its intent – especially given that most of the legislators who actually wrote the damn thing are still in office. This would have required Roberts to rule in favor of the plaintiffs — which would have effectively invited Congress to clean up its own mess.

 But that's not what Roberts chose to do. He notes:

Given that the text is ambiguous, we must turn to the broader structure of the Act to determine the meaning of Section 36B

In other words, he decided to clarify the ambiguous text by turning to something even more ambiguous (that, as per Nancy Pelosi's admission, they Congress didn't even read in its entirety before passing). In fact, if there was anything clear about the law it was that one of its chief architects, Jonathan Gruber, not once, not twice, but many times said explicitly that subsidies through federal exchanges were expressly not part of the law's "broader structure."

So why did Roberts make this move?

If Congress had been sympathetic to Obamacare — and clarifying its intent vis-à-vis the federal subsidies were not a super-contentious issue — surely Roberts would have taken the tack of restraint. But it's precisely because Congress isn't sympathetic and might take the opportunity to actually gut Obamacare that Roberts took matters in his own hands because he was loath to get blamed for brining down the president's signature piece of legislation.

In other words, he was moved by political considerations — maintaining the institutional integrity of the court (also called turf protection) and not come across as a partisan hack — to arrogate such vast legislative powers to himself.

And we elect Republican presidents why, again?