When Chief Justice Roberts handed down the decision preserving a key provision of the Affordable Care Act this year in King v. Burwell, the comparisons to his decision three years earlier in the other Affordable Care Act case were inevitable. "John Roberts Saves Obamacare, Again," read one headline. But while the broad topic of the two cases may be the same, the legal issues and the Chief Justice's opinions in the two cases are very different. And John Roberts deserves much more praise for this health care decision than the last one. In both result and rationale, this time -- unlike last time -- progressives got an unqualified win.
When the Affordable Care Act was first before the Supreme Court in 2012's NFIB v. Sebelius, the primary questions were constitutional: whether Congress had the power to require individuals to buy health insurance, and whether Congress could withhold existing Medicaid funds from states that chose not to participate in the ACA's expansion of Medicaid. When the Chief Justice said yes to the first question, he was championed by progressives for engaging in an act of "judicial statesmanship" and "plac[ing] the bipartisan legitimacy of the Court above his own ideological agenda." One commentator said it was a "huge day in the evolution of Chief Justice Roberts as a great chief justice." But amidst all the praise for the outcome on the first question, relatively little attention was paid at the time to the answer on the second question -- and the reasoning for both.
In his opinion for the Court, Chief Justice Roberts upheld the individual mandate, but only on the ground that it was a permissible exercise of Congress's power to tax. (Justice Scalia still hasn't gotten over being on the losing side of that issue; he mocked Roberts's conclusion in that case in his dissent in this year's case, accusing the Court of "rewr[iting] the mandate-cum-penalty as a tax" and referring to it as one example of the "somersaults of statutory interpretation" the Court has performed to save the law.) But in NFIB, Roberts in fact rejected the primary argument offered by supporters of the law -- and adopted by the Court's more progressive justices in what they viewed as a "[s]traightforward application" of the Court's precedents -- that the individual mandate was a valid exercise of Congress's power to regulate interstate commerce. To the contrary, he wrote at length (arguably unnecessarily because it wasn't critical to his decision in the case) about how the Commerce Clause could not support the individual mandate. While we've not yet seen whether this unnecessary discussion will impose limits on congressional action in the future, it was certainly not something that should have been celebrated by those who believe Congress should be able to act on the broad power the Constitution grants it to address national problems.
The problems with the Chief Justice's opinion on the second issue in NFIB were even greater. Despite all of the talk about how Roberts saved Obamacare, he actually helped kill a part of it, concluding that the law's expansion of Medicaid was unconstitutional because it violated the Constitution's Spending Clause. Although the Court allowed the expansion to go forward so long as states would not lose existing Medicaid funds if they chose not to expand Medicaid; the consequences of the Court's decision have been significant: 19 states have opted not to expand Medicaid, resulting in millions of people needlessly uninsured. And in reaching this result, Roberts again planted the seeds to limit Congress's ability to regulate and address national problems in the future. In short, while progressives were right to recognize that the Court's decision in NFIB could have been much, much worse, there was a great deal that should have dampened celebrations last time.
This time around, however, there's almost nothing to ruin the parade of progressives and supporters of the Affordable Care Act, not to mention those who believe in the rule of law. In the months leading up to the Court's decision in King, there was a great deal of speculation that the government might win, but that the win would be bittersweet or limited. Some speculated that the Court might leave it open to a Republican president to take the tax credits away in the future; others speculated that the Court might create bad law on states' rights as the price to pay for saving the ACA. Instead, Chief Justice Roberts gave an unqualified win to the Administration, holding that it was the Court's responsibility to "determine the correct reading" of the provision at issue, and that the law requires that the challenged tax credits be available nationwide. There was no equivocation on the part of the Court, and there was no room for subsequent Administrations to change what the law requires.
Roberts also delivered a forceful message to those ACA opponents who have been bringing baseless legal challenges to the ACA to try to achieve through the courts what they have been unable to achieve through the political process. He explained that "in every case [the Court] must respect the role of the [Congress], and take care not to undo what it has done." In other words, Roberts understands how devastating it would be to the legitimacy of the Court if it violated well-established legal principles to try to undermine the ACA, and he wants none of it. "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. . . . [The provision at issue] can fairly be read consistent with what we see as Congress's plan, and that is the reading we adopt," he wrote. Supporters of the ACA could not have asked for more.
Not only was the outcome in this health care decision much better than in the last one, so too was the legal reasoning that Chief Justice Roberts used when interpreting the statute to require tax credits nationwide. In trying to understanding the meaning of the law, Roberts did exactly what judges are supposed to do -- he looked to the text of the law as a whole, and he recognized the important role that structure, history and purpose can play in trying to understand what Congress intended. This approach shouldn't be controversial. As the Chief Justice made clear at the conclusion of his opinion, the courts should respect that it is the role of Congress to make the laws, and "[a] fair reading of legislation demands a fair understanding of the legislative plan." In an important book published last year on the topic of interpreting statutes, Second Circuit Chief Judge Robert Katzmann made the same point: "In our constitutional system in which Congress, the people's branch, is charged with enacting laws, how Congress makes its purposes known -- through text and reliable accompanying materials -- should be respected, lest the integrity of legislation be undermined." And yet it is an approach that three of the Court's justices considered "absurd" and "interpretive jiggery-pokery." So it's much to the Chief Justice's credit that he so clearly spelled out how the law's history, structure, and goals worked in tandem with its text to illuminate the meaning of the provision at issue.
By voting the way he did in King and writing the opinion he did, Chief Justice Roberts did exactly what any responsible and fair judge should have done. But his decision in this year's health care case still deserves a great deal of praise -- and much, much more than his decision in the last one.
This piece is also crossposted at CAC's Text and History blog.