Deferring to Congress, Roberts Takes Over Its Job

The chief justice saves Obamacare by rewriting the law.


Three years ago, Chief Justice John Roberts rewrote the Patient Protection and Affordable Care Act, a.k.a. Obamacare, to save a key provision that he believed would otherwise be unconstitutional. Last week he did it again, this time to make the law work better.

In both cases, Roberts claimed he was deferring to the legislature when he was doing just the opposite: applying the law he thought Congress should have enacted instead of the one it actually passed. Such arrogance disguised as modesty undermines the rule of law while encouraging legislative laziness.

The 2012 case involved Obamacare's "penalty" for anyone who "fails to comply" with the "requirement to maintain minimum essential coverage," which Roberts reframed as a "tax" that hinges on whether you follow the government's guidelines regarding health insurance. He thus transformed a mandate into a suggestion (albeit one that you can ignore only at the cost of higher taxes) to avoid further expansion of the power to regulate interstate commerce, which the Supreme Court had already stretched beyond recognition.

There was another option, of course. Roberts could have joined four of his colleagues in concluding that the individual health insurance mandate exceeded the powers that the Constitution gives the federal government. But such a ruling would have eliminated a crucial feature of Obamacare, and Roberts was determined not to do that.

For similar reasons, Roberts did not want to conclude that federal subsidies are available only to people who buy health insurance through "an Exchange established by the State," which is what the law says. Writing for the majority in last week's decision, Roberts worries that such a ruling "would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very 'death spirals' that Congress designed the Act to avoid."

Roberts therefore fixed the statute by excising those three inconvenient words—"established by the State"—from Section 36B of the law. Although Roberts claims the revision was necessary to resolve an "ambiguity," he concedes that the challengers' "arguments about the plain meaning of Section 36B are strong." How could he not, since the plaintiffs argued that the law means what it says, while Roberts decided it means the opposite?

As Justice Antonin Scalia pointed out in a dissent joined by Clarence Thomas and Samuel Alito, fixing statutes is not the Supreme Court's job, which is limited to saying what the law is. That responsibility includes pointing out when a statute conflicts with the Constitution, but it does not include editing a statute so that it better accomplishes what the justices take to be the goals of Congress.

"The Court forgets that ours is a government of laws and not of men," Scalia writes. "That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers."

By trying to improve on the legislature's work, the Court not only exceeds its proper function; it discourages Congress from performing its function properly. That is the last thing we need in a country where legislators routinely vote for bills they have not read, let alone understood.

Roberts notes that Congress passed the 900-page Affordable Care Act "using a complicated budgetary procedure known as 'reconciliation,' which limited opportunities for debate and amendment." He observes that the law "contains more than a few examples of inartful drafting" and "does not reflect the type of care and deliberation that one might expect of such significant legislation."

The solution to such congressional carelessness is not judicial intervention but legislative diligence. If Congress errs, Congress should try again, and maybe it will do a better job.

Like the overprotective parent of a student whose mediocre term paper has been returned full of red ink, Roberts wants to take over the project based on his own (possibly mistaken) understanding of the assignment. But if Congress does not correct its own mistakes, how will it ever learn?

© Copyright 2015 by Creators Syndicate Inc.

NEXT: No, the Supreme Court's Marriage Ruling Doesn't Mean All States Must Recognize Each Others' Gun Carry Permits

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  1. How quickly everyone forgot that the phrase “established by the States” was inserted deliberately by the Dems to help ensure passage of the Bill. It was a “gimmick”, used to game the CBO score and make it falsely appear that PPACA was revenue-neutral, the assumption being that some Republican Legislatures would opt-out, and their States would not attract Federal subsidies.

    If that language had not been included, the CBO would have assumed Federal subsidies would apply in every State, and have costed the Bill accordingly, so it could not have passed.

    1. If that language had not been included, the CBO would have assumed Federal subsidies would apply in every State, and have costed the Bill accordingly, so it could not have passed.

      Do you have a link for that?

      1. No, I wish I could find one. I remember it was discussed quite widely at the time, but it seems to have been shoved firmly down the memory hole.

  2. We have to pass the bill to find out what Justice Roberts will later put in the bill.

    1. Does it involve boxcars?

      1. Does it involve boxcars?

        And group showers.

  3. We also need more attention to the Supreme Court’s other ruling on HUD where they can now cry discrimination if there isn’t some magic proportion of minority group x living somewhere. HUD is one of the creepier/Orwellian government bureaucracies and people barely pay attention.

    Reason, get on this.

    1. I’m worried about this too – the suburb I live in would definitely be on their hit list. Best schools in the area… 98% white…

      1. *** rising intonation ***

        But what percentage *self-identifies* as white?

    2. HUD is a crony capitalism venture gone nuclear. The minority requirements are just the tip of the problem. The whole department needs to be eliminated.

      1. True dis and true what Brochetta said… (mmm bruschetta….)

        1. You’d better be pronouncing that brus-ketta.

          1. Brushutya. As in, brushutyamouth.

  4. OT: Economist Tells Congress: U.S. May Be in ‘Worse Fiscal Shape’ Than Greece

    “We have a $210 trillion fiscal gap at this point,” Kotlikoff told the senators, which amounts to 211 percent of the U.S.’ $18.2 trillion GDP, making it higher than Greece’s 175 percent debt-to-GDP ratio.

    “Stated differently, the overall federal government is 58 percent underfinanced,” Kotlikoff testified.

    “Successive Congresses, whether dominated by Republicans or Democrats, have spent the postwar accumulating massive net fiscal obligations, virtually all of which have been kept off the books,” he noted.


    1. Don’t worry, we will declare all of it “odious debt”, print away what we can’t default on, and enjoy the Zimbabwe-style prosperity.

      1. You know what gets me about this story? The debt is the biggest financial, social, and political issue this country faces, and yet it is barely talked about in the media. The debt is actually going to bring this country down and impoverish our kids’ future. Instead, we are subjected on a daily basis to the shallow progressive agenda (war on women, confederate flag, etc.), which serves limited political goals and papers over this looming threat. This issue should be leading headlines.

        1. Sheesh, what a buzzkill!

          *** goes back to watching America’s Got Talent ***

        2. The problem the United States faces is that its currency is the tallest midget in the room. This allows it to accumulate debt at little to no near-term cost. At the point that there is an alternative to the dollar or when the petro-dollar system collapses, we are well and truly fucked.

        3. False. Confederate flag is a bigger issue. Racist.

    2. but Obama brought down the deficit – or so I’ve been told countless times.

  5. FWIW ? Kagan 2009: “There is no federal constitutional right to same-sex marriage”
    1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

    a. Given your rhetoric about the Don’t Ask, Don’t Tell policy?you called it “a profound wrong?a moral injustice of the first order”?let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

    Answer: There is no federal constitutional right to same-sex marriage.

    1. A reasonable mistake of law. An inartfully drafted response. A penalanswer.

      IOW, her *intent*, in retrospect, was clear.

  6. I have been told by reliable sources that since we owe it to ourselves that it’s not really REAL debt.

    1. So, not “debt” debt, the way Polanski didn’t commit “rape” rape?

      1. It’s not legitimate debt. Cuz, you know, if it’s legitimate debt, the body politic has a way of just shutting that whole thing down…

  7. Remember when they told us that we can keep our doctor and insurance plan and costs won’t go up, but down? you can multiply these examples and on other topics, too.

    The left lies to actualize its agenda. It’s right there in Alinksy’s Rules for Radicals.

    1. Sorry, this was a reply to Johnny above on Kagan’s lie under oath.

  8. Who was that infamous justice who said the Supreme Court’s role was not to save the public from the consequences of their poor electoral choices, but to help the public go to hell if that was what they wanted?

    Roberts narrows that to the elitist statist (but I repeat myself) point of view, that his job is not to save the public from the consequences of Congress’s poor choices (but it IS!!!), but to send the public to hell if that is what it takes to enforce Congress’s choices, constitutional or not.

    I sometimes wonder what even the most statist of the Founding Fathers would think of this. I can’t imagine even a single one being dumbfounded at how these proggies have twisted the Constitution’s plain language, and how Roberts can so blithely ignore it.

    1. They would also be wondering why the hell the citizenry is doing nothing about it. Those men, after all, created a revolution on the basis of a lot less.

      1. Our forefathers rebelled over taxes that amounted to pennies per item, and two centuries later we fork over 40 percent of our income and call it “fair.” The excise taxes and import duties that financed Washington for more than a century were not sustainable. A new tax system was needed. But in the century that followed its adoption, it changed the American people themselves.

        Americans today are taxed at levels most of our forebears would have considered unthinkable. By our own nation’s historical standards, we are outrageously, insanely overtaxed. And yet we shrug our shoulders and say, well, at least we’re not France.

        By the way, France’s top marginal tax rate is 40 percent. President Obama plans to raise our top marginal rate to 39 percent.

        Read more at http://spectator.org/articles/…..party-time

        Good stuff.

        1. But “we” don’t fork over 40% of our income. Half of “we” forks over nothing on income taxes, and about 15-20% between other taxes like Social Security, Medicare, sales tax, property tax, corporate income tax hidden in the cost of goods, etc.

          A few of “we” (commonly referred to as “them”) pay north of 50% between all taxes.

          This is why there is no common revolt. The taxes in question do not apply to sufficient numbers.

          1. Also, the taxes are so spread out over so many categories that their true value is hard to recognize. But local, state, and federal governments spend $7T a year, which works out to around $20-25K a year per person, or $50K a year per family. It’s also 40% of GDP, and how anyone can think that level of inefficient redistribution is not a drag on the economy is beyond my comprehension.

          2. That’s Federal taxes, add in State and Local taxes, and I’m sure you’ll find that everybody is paying something.

            1. Everybody pays sales taxes and sin taxes.

    2. Who knows? Roberts might be the Francisco D’Anconia of our day. This ruling is most certainly a catalyst for our system imploding.

  9. Good Morning Peanuts!

    ADP private sector payroll up 237,000 for June. Consumer confidence up again. Housing starts at nine year highs. More new market records.

    Good times!

    1. Hey Weigel. How’s the problem acne?

      1. I’m the Buttplug, not Weigel, you idiot. I know you conservatives can’t deal with reality but you are even denser than the average wingnut.

        1. Yup. Lotta conservatives here. You’re a fucking genius. We’re a regular National Review over here….

          Dipshit. Goddamn you are fucking stupid. As a troll. You don’t even troll the correct audience, you fucking moron. IF you did, you’d be more like Hihn…

          1. You’re in John’s GOP circle jerk therefore you are a conservative.

            1. That is the comment that makes you you. Goddamn you are a fucking moron. You are literally too stupid to insult.

              1. Every time he brags about good times, post this link: http://www.alt-m.org/2015/06/1…..-eye-test/.
                Flood it with the link. Sooner or later it might tire out.

    2. Dreams are a great thing, but you know something? They take a lot of energy. But that’s OK. There’s a job waiting for you down the block from your house that doesn’t require a thought in your head or a hope in your heart. So come on down and work for the artificial flower factory. Why fight it? OK? Thank you.

      1. US domestic made car sales at record highs, US Dollar strong as death, deficit falling, exports setting records, etc.

        You must hate it.

        1. Yes, records being set … after 9 years? You keep trolling with the same bait, it keeps being rejected as phony. How many more years will you keep fishing with no results?

          1. Housing starts returning to levels of the prior administration after almost two full terms is nothing to brag about.

            1. Sure it is — if you’re a shit stopper.

          2. Furthermore, any REAL economic improvement that has ever occurred anywhere on the planet has always been entirely due to free market forces as it an absolute physical impossibility for any government action to ever produce an outcome that is in any way superior to a pure hands off free market.

            So if he is trying to claim that some economic upturn is caused by something the current administration has done, that is a FAIL – and will always be so.

            1. This has always amazed me, the people who think you can combine the inefficiency of government, the theft of taxation, the moral hazard of free stuff, and the overhead of private people and businesses trying to keep up with government, and yet somehow come out ahead. I have a few friends who understand that when I have to drive 7 miles on a dirt road to get milk, it makes that milk much more expensive, but I have more friends who just don’t see that as being significant enough to matter.

        2. US Dollar strong as death

          “Ooooh that smell
          Can’t you smell that smell”

        3. Domestic car sales at records highs? 1)How’s their market share? 2)How many of those sales are government fleet sales?

    3. Is that supposed to constitute proof of something in particular?

    4. Yes, indeed: Good Times Indeed

  10. I like to believe what Shikha Dalmia wrote and say that Robert’s vote didn’t matter in King v Burwell. It would have been upheld regardless of his vote or not. But since he sided with them, he could steer why it would be upheld and more importantly, lay the groundwork for future cases about government overreach.

    This all could have been settled years ago if he had simply sided with the minority and tossed out the individual mandate of the ADA. But he didn’t believe he could and also maintain that the SCOTUS is a non-political branch of the government, since it was such a divisive and partisan issue. What Chief Justice Roberts did was wrong but it wasn’t without reason and forethought. Had Kagan or Sotomayor written the majority, it would have said that it was a nuisance suit and sided wholly with the government. Instead he was able to shift it enough to give those for shrinking government reach and control a new angle of attack.

  11. I would bring everyone’s attention to the OpEd written by Thomas Sowell and up at RealClearPolitics yesterday.

  12. Justice Roberts is the consummate sausage maker.

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