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