Yesterday’s Supreme Court hearing on the King v. Burwell challenge to ObamaCare produced a lot of the usual tealeaf reading from SCOTUS watchers. Most of those who commented on the proceedings concentrated on trying to figure out the outcome by interpreting the comments from the bench. There seems little doubt that seven of the judges’ votes are already a given with the four liberals lining up behind the legality of the federal subsidies being given to consumers in states that did not set up their own ObamaCare exchange and three conservatives believing them to contradict the text of the law. That means the speculation centers on the thinking of Justice Anthony Kennedy, the court’s usual swing vote and that of Chief Justice John Roberts, who usually lines up with the other conservatives but abandoned them in 2012 in order to register an illogical opinion that allowed ObamaCare to survive a constitutional challenge that was far more substantial than the one put forward in the current case. That means there’s no telling how the case will be decided. But if Roberts does another ideological somersault in order to avoid getting the court in the middle of a political tangle it will be another telling blow to the system of checks and balances created by the Founders.
ObamaCare defenders have tried to argue that the challenge to the law is a narrow technicality that ought not to invalidate the president’s signature health care legislation. From the frame of reference of most liberals, the Affordable Care Act is, however flawed it might be, another step on the inevitable path to an enlightened society that the left has been pulling the country toward for the last century. The idea of striking down a key element of the enforcement of a law simply because it is contradicted by the text of the legislation strikes them as unfair as well as bad policy.
This is hypocritical cant since Roberts’ decision that validated the law’s constitutionality was itself based on a technicality — the notion that it was a tax even though its authors and the president claimed it was nothing of the kind — and liberals cheered rather than complained about the convoluted and narrow reasoning behind the decision.
But the claim that the absence of language in the statute that would authorize the federal government to set up exchanges in states that refused to operate them is a technicality is a false argument. The legislative history shows that the intent was to force states to run the exchanges and that having Washington step in where they didn’t was contrary to its purpose.
That means the outcome of King v. Burwell hinges on whether a majority of justices think the purpose of the Supreme Court is to interpret the laws as they were written or to simply judge them on the desires of the political forces that back the program. Four liberals say to hell with the text of the law. Three conservatives say the law must be judged by its text not the desire of the administration to see its unpopular achievement preserved in spite of its obvious shortcomings.
That leaves Kennedy and Roberts to decide whether they are prepared to do what the Court couldn’t bring itself to do in 2012: take a stand on the Constitution even if it meant that their institution would be seen as responsible for an outcome that would offend one half of the electorate.
Interpretations of Roberts’ bizarre opinion on the original ObamaCare case have been all over the map but it’s hard to avoid the conclusion that the chief justice was convinced it would be bad for the high court if it decided something that would better be determined by the voters. He seemed to be challenging the country in his opinion (which confirmed that the law violated the Commerce clause but then said it was alright because it was a tax) to make up their own minds on the law by either voting for President Obama or his opponent Mitt Romney who vowed the law’s repeal would be his top priority.
This is not the first time in history the Supreme Court has gotten out of the way and let the politicians and the voters decide major issues. But for Roberts to find two separate excuses to defy logic and render something legal that is clearly anything but would be egregious.
It’s easy to sympathize with Roberts’ desire to avoid having a court with a narrow conservative majority be seen as partisans in the way it did when Bush v. Gore was decided. If the court is to punt every time the fates put it in a position to perform its constitutional obligation to provide a legal check to the legislative and executive branches, why do we have a judiciary? It is the duty of the court to speak up when Congress or the president overstep their power or create laws that don’t stand up to scrutiny. If Roberts is going to decide King v. Burwell on the same bizarre lines that he used last time, it will do more damage to the court than any political brickbats that are tossed in its direction by angry supporters of the president.
If Roberts and Kennedy honestly thinks the federal exchanges are legal, then they should rule accordingly. But if they don’t but let them stand for fear of being criticized then they will deserve the opprobrium that conservatives and posterity will heap on them.