Its Now SCOTUScare——Justice Roberts Elects Himself To Congress

For the second time in three years, Chief Justice !–
John Roberts!–
– has rewritten the Affordable Care Act in order to save it. Beyond its implications for health care, the Court’s 6-3 ruling in King v. Burwell is a landmark that betrays the Chief’s vow to be “an umpire,” not a legislator in robes. He stands revealed as a most political Justice.

The black-letter language of ObamaCare limits insurance subsidies to “an Exchange established by the State.” But the Democrats who wrote the bill in 2010 never imagined that 36 states would refuse to participate. So the White House through the IRS wrote a regulation that also opened the subsidy spigots to exchanges established by the federal government.


Chief Justice Roberts has now become a co-conspirator in this executive law-making. With the verve of a legislator, he has effectively amended the statute to read “established by the State—or by the way the Federal Government.” His opinion—joined by the four liberal Justices and !–
Anthony Kennedy!–
–—is all the more startling because it goes beyond normal deference to regulators.

Chief Justice Roberts concedes that the challengers’ arguments “about the plain meaning” of the law “are strong.” But then he writes that Congress in its 2010 haste bypassed “the traditional legislative process” and thus “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.” So because ObamaCare is a bad law, the Court must interpret it differently from other laws.

More to the political point, the Chief argues that withdrawing the subsidies would undermine larger ObamaCare goals such as giving “certain people tax credits to make insurance more affordable” and could lead to bad policy consequences like higher costs. “It is implausible that Congress meant the Act to operate in this manner,”

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