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.