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John Roberts’ Chance for Redemption
In Halbig v. Burwell, the second most important court in the land (the U.S. Circuit Court of Appeals in Washington, D.C. — from whence came Justices Scalia, Thomas, Ginsburg, and Roberts) has triggered a fatal error that will shut down Obamacare in much of the nation. Obamacare provides subsidies (through a tax credit) to consumers who purchase insurance policies on an “Exchange established by the State.” Under the law, a “State” is defined as the 50 states and the District of Columbia. But in the 36 states that refused to establish these exchanges (which are government-run marketplaces — a contradiction in terms), Obamacare authorized the Department of Health and Human Services to set up a federal exchange instead.
The limitation of the subsidy to state-run exchanges means that no subsidy will help individuals purchase insurance in those 36 states. As both Judge Thomas Griffith for the majority and Judge Harry Edwards for the dissent recognize, this subsidy works in tandem with many other parts of the Obamacare system, and its absence will probably bring the whole contraption to a grinding halt. It seems likely to paralyze the whole U.S. health care system, as insurers and consumers struggle to confront the huge mass of conflicting regulations, ambiguities, and mandates. If ever we needed proof of Hayek’s Nobel Prize-winning theory that human regulators cannot manage the millions of daily decisions in an economy as well as private markets, this is it.
The case is not just important for its impact on the rest of the Obamacare system, however. It is also a chance for the federal courts and Chief Justice John Roberts to redeem themselves. In the first Obamacare challenge to reach the Supreme Court (where this case is headed like a bullet train) two years ago, recall that Roberts joined with the four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) to rewrite Obamacare’s punishment for failing to purchase an individual insurance policy into a giant tax. This had the effect of saving the statute from its fundamental constitutional defect – regulating beyond Congress’s power over interstate commerce – but forced the Court to engage in rewriting legislation rather than interpreting it. Under our Constitution’s separation of powers, rewriting stupid, inefficient, or mistaken laws is the job of congressmen, not judges.
As before, the Obama Administration will plead for the judges to rewrite Obamacare to avoid absurd results. President Obama will be inviting the Supreme Court to join him in the dereliction of his constitutional duty to faithfully execute the laws. Here, the President simply wants the courts to say that a “state” includes the federal government – which would allow the subsidy to apply throughout the country. The only problem is that the text of the law passed by Congress – by a single vote in the Senate – clearly excludes this possibility.
Sometimes judges will correct an obviously absurd result – calling for the construction of a bridge over a river, for example, that does not actually exist. But here, the result is not absurd — simply a bad idea. In areas such as Obamacare itself, immigration, education, and welfare, President Obama has similarly rewritten the laws to advance his preferred policies, rather than abiding by those passed by earlier congresses and signed by earlier presidents.
Chief Justice Roberts need not accept the invitation to creatively rewrite an act of Congress to improve it, but instead should limit himself to a judge’s proper role of only interpreting the law, not making it. The same forces that pressured him to uphold Obamacare two years ago will no doubt reappear – recall President Obama’s State of the Union attack on the Court, Democratic Senators launching preemptive assaults on Roberts, and media and academic criticism of the Court before the decision even came out.
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 rewriting the law instead, Chief Justice Roberts would be undermining the accountability that lies at the root of our democratic system, for the voters would not know whether to hold their legislators responsible for the errors of Obamacare.
In Sibelius two years ago, the position of judicial restraint may have militated in favor of upholding Obamacare despite its many constitutional defects. But here, Roberts need not exercise the awesome power of judicial review — the position of restraint now simply requires the law to go forward as written. This case will give the Chief Justice an opportunity to atone for his judicial sin of two years ago. Not many judges have the chance to make up for the mistakes of the past. Let’s hope he takes advantage of the opportunity.
Published in General
I wouldn’t count on it.
Professor Yoo:
Do you think that he will? If so, what would be his motivation?
Thank you in advance for any explication you might provide.
Chances are between extremely slim and none that this decision will survive en banc review and then SCOTUS review. Nice tease, though…
Your keyboard to God’s inbox.
My suspicion is that somehow, some government agency, or some opposition research outfit has something on Roberts.
John Roberts looks like Major Healey from “I Dream of Jeannie”.
I can see that.
Precisely.
Hmmmm..let’s see…what to chisel on the gravestone?
…..weak, intimidated, spineless opportunist.
……wise, prudent, foresighted protector of the Court, the Constitution, and the Country.
What’s it gonna be?
Heaven knows Mr. Yoo.
Regards,
Jim
The en banc review is irrelevant. What matters is whether or not 4 supreme court justices think the case is worth taking.
I’m one of those who think it likely that Roberts came under the influence of The Greenhouse Effect in his Sibelius about-face. I see no reason to assume he may have matured.
I am with those who don’t see much hope in Mr Roberts.
The Constitution is being dismantled by an Alinskyite – what could possibly go wrong?
I believe Chief Justice Roberts will respect the text of the law this time. That is the rational choice. But if he has a different idea of “rational” then we should look to his previous decision.
The apparent rationale many attribute to that decision is that he wanted to avoid having the Supreme Court thwart implementation of a major program that many Americans thought had a chance of functioning effectively. In other words, he threw Obamacare back to Congress and the President.
Today, nobody believes Obamacare can function effectively. Congress and the President failed to correct its problems. This time around, the popular will is to let Obamacare die. Roberts will not stop it from dying, particularly when the simple “letter of the law” question before the court provides a completely rational means of resolution.
I agree with rico. By this time, Roberts must understand that he cannot sustain the integrity of the court and dodge politically difficult decisions.
I tend to disagree with the optimistic portion of that. I agree (without real evidence) with those who said that he had acted to preserve the “Dignity of the Court” by trying to avoid doing something that looked political. Problem is, the Court is the servant of the Constitution and not the other way around. By forsaking the Constitution to preserve to Court, I think a terrible wrong was worked.
This seems consistent with your implication that he tried to dodge a politically difficult question and sustain the integrity of the court.
For this level of performance we need qualifications? And with stare decisis so overvalued that it seems to outweigh clear text, I think it will be harder for him to get out of this corner than it was to get into it, and that’s saying something — IF he even wants out.
I don’t know if there is anything Roberts could do to redeem himself in my eyes.
I’m done with him. I wrote him off and I meant it. Fortunately for him, he doesn’t need my vote.
What is reasonable is the way Roberts sees this should it come to his court. No more, no less. He does have a track record which might indicate that he is immune to the perceptions of others in a way that we ordinary American citizens – especially those of us who haven’t gone through law school – don’t understand.
I can’t psychoanalyze Roberts (hell, I can’t psychoanalyze me). But I can argue that the Obamacare law isn’t right. That doesn’t need any psychological analysis.
What bothers me is the half-baked notion that the Court ought to sustain Congress’ wishes, by (if necessary) rewriting the original law to make it more amenable. Why does this Court need to do that? To preserve the wishes of the people? The people flatly rejected this law.
Remember, “Congress” is a changing entity. The Congress that passed this law (on a purely partisan basis) isn’t the same Congress now. As a matter of fact, the Congress that passed Obamacare was decisively rejected by the people in the next immediate election. No one can seriously maintain that the Court needs to repair the mistakes of a previous Congress because Congress represents the people … when, after all, the people summarily rejected that same Congress, precisely for passing this law.
The people had a chance to express their disapproval of this law – and we did, decisively – so to try and repair it would certainly not be based on a wish to sustain the people’s will.
That thinking is nuts.
“Not many judges have the chance to make up for the mistakes of the past.”
What evidence do we have that he considers his Sebelius move a “mistake?”
Or even that Congress’ will, for that matter. They wrote the law precisely to exclude federal exchange participants from the subsidies (and to ensure the bill’s passage: see B. Nelson (D-NE)). THAT WAS THEIR WILL. They did it for a reason. It was their intent to do that. It was not a drafting mistake. They expressly and without ambiguity declared subsidies to be available to State exchange participants, PERIOD. The Federal government is NOT a State. That’s how the Roberts Court better rule.
And if we needed (we don’t) another reason to disband/defund the IRS, their writing regulations exactly contrary to the written text of the law and the perfectly-determinable will of the Congress is it. It is a corrupt, incorrigible arm of the Democrat Party and needs to be eradicated.
Frank,
This article at NRO gives the low down on why the en banc review is a Harry Reid rigged kangaroo court.
The D.C. Circuit Court has been Nuked. The Obamites have been severely damaged but they are still full of their own fantasies and will be pulling every trick in the book. Unless there is a conscience contagion it will probably come down to 5 to 4. If so Mr. Roberts is going to feel the heat. Gd never said life was going to be easy.
Regards,
Jim
Questions for Prof. Yoo:
1) If an en banc review is granted and the current ruling is overturned, wouldn’t that make a SC review less likely considering that the circuit courts are now in accord?
2) Why would construing the plain meaning of “Exchanges established by the States” as being inclusive of the federal exchanges be more difficult than construing the plain meaning of a “penalty” actually being a “tax”? In other words, if Roberts was inclined to preserve the legislation through a dubious interpretation of plain meaning once, why wouldn’t that same logic be equally applicable here?
3) Assuming an en banc ruling by the DC Circuit akin to the 4th Circuit ruling, would the 4 Justices most likely to vote to uphold the original ruling (presumably Thomas, Scalia, Alito and Kennedy) still vote to take the case even if they deem Roberts likely to maintain his position in favor of wide deference to legislative intent in this instance (Obamacare)? Would they even discuss it with him prior to the vote and refuse to review if they feel Roberts will stand fast? Does the SC discuss the merits of the case before granting a SC hearing?
This is well known by me…and irrelevant as I said above. The ruling will be appealed after the entire DC circuit court reverses this decision. Then all that matters is whether 4 supreme court justices want to hear this case.
My fear is that, after an en banc hearing, there will be no conflict between the circuits to resolve. It is hard for me to imagine that the Chief Justice will be eager to revisit this contentious issue if it can be ducked.
Frank,
It is obvious that the Obamites who wrote the Law were too arrogant by half. They expected to have very few States that didn’t create exchanges and they would use this clause as a weapon to force the remaining States on board. With two thirds of the States not interested in creating an exchange Obamacare sinks in its present form.
I agree with your point that all that matters is 4 Supreme Court Justices want to hear the case. The issue itself is one of ultimate power. If a federal regulatory agency can just rewrite and fund major massive pieces of legislation like Obamacare according to its own prejudice then we are no longer in a legislative democracy. Either Congress changes the Law or it goes down. Unless the Obamites want to just ignore the Legislative Branch as written in the Constitution along with just ignoring Obamacare as written.
Regards,
Jim
More to the point, there is no substitute for winning elections. I always tell my clients not to look for any litigation “magic bullet” that will solve their problems.
Michael,
That is precisely my fear as well, which is why I posed the question. If the circuits agree and Roberts wants to avoid another fight why wouldn’t that carry the day? That seems to me to be where this is heading.
Double-post oops.
One of the things that struck me from Roberts’ original Obamacare decision was that he said, paraphrasing, that it is not the job of the judiciary to save the people from their bad choices. I think this was a theme in some of the few public remarks he made afterwards.
It seems to me that “saving the people from their bad choices” was exactly the theme of the 4th circuit decision. They agreed that the plain and unambiguous language was in support of their version of Halbig but, essentially, that it didn’t matter.
Prof. Yoo can correct me but I think the courts generally take the view that it is up to the legislature to “fix” bad bills. But the politicized 4th panel realized that Congress would never do such a thing because the law was passed in a very narrow window of time when there was enough Congressional support for it.
A Republic really isn’t supposed to pass laws on the one-vote-one-time principle. Programs should be popular enough to be changed. Clearly the politically-minded judges on the 4th realized Obamacare isn’t.