Examining the Origins of “Robertscare”

In the end, applesauce won over baseball. Fourteen years ago, during Senate hearings regarding his nomination as chief justice of the United States, John Roberts used a baseball metaphor to explain his view of judges’ modest role:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire…I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

On two major cases related to President Obama’s signature health care law, however, Roberts violated his 2005 pledge, wriggling himself into lexicographical contortions to uphold the measure passed by Congress. As his then-colleague Justice Antonin Scalia noted in the second ruling—which posited that the phrase “Exchange established by the state” applied to exchanges not established by states—upholding Obamacare caused Roberts to embrace “pure applesauce.”

Political Flip-Flop

She writes that he initially voted with the four other conservatives to strike down the ACA, on the grounds that it went beyond Congress’s power to regulate interstate commerce. Likewise, he initially voted to uphold the ACA’s expansion of Medicaid. But Roberts, who kept the opinion for himself to write, soon developed second thoughts.

Biskupic, who interviewed many of the justices for this book, including her subject, writes that Roberts said he felt ‘torn between his heart and his head.’ He harbored strong views on the limitations of congressional power, but hesitated to interject the Court into the ongoing health-insurance crisis. After trying unsuccessfully to find a middle way with Kennedy, who was ‘unusually firm’ and even ‘put off’ by the courtship, Roberts turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision that upheld the ACA’s individual mandate under Congress’s taxing power, while striking down the Medicaid expansion.

On the day of the ruling in June 2012, Chris Cillizza, then writing for The Washington Post, claimed that Roberts’ opinion “made good on his pledge to referee the game, not play it.” But the story Biskupic tells, which confirms prior reporting by Jan Crawford published shortly after the ruling, contradicts Cillizza’s view entirely. Roberts’ entire approach to the case consisted of playing games—and highly political ones at that.

The tenor of the passage reinforces how Roberts abandoned his stated principles in NFIB. Over and above talk of “the ongoing health insurance crisis” (perhaps a rhetorical flourish inserted by a liberal Atlantic writer) Roberts had no business feeling “torn between his heart and his head,” let alone stating as much to a reporter. Judges can feel both empathy and sympathy for parties in the courtroom and at the implications of their rulings. But facts remain facts, the law remains the law. Lady Justice remains blind for a reason.

An umpire—or a good umpire, at least—should make calls without fear or favor. If that means calling a third strike against the star slugger for the last out of the World Series, so be it. By his own admission, Roberts let factors outside the law determine his vote in the case. He abandoned his key test at a time when he should have followed it most closely.

Roberts’ Judicial Arrogance

I took that position not because I agree with Obamacare, but because Congress in 2017 decided to set the mandate penalty to zero while maintaining the rest of the law. Of course, Congress had taken no such action clarifying its intent on the law at the time of the ruling in NFIB v. Sebelius.

If the current lawsuit represents judicial activism, asking judges to take an action that Congress explicitly declined to embrace, then Roberts’ 2012 decision to uphold the individual mandate represents an act of judicial cowardice, running for cover and hiding rather than taking the decision that the law requires. For that reason alone, conservatives should refer to the law as “Robertscare”—for the justice who went out of his way to save it—rather than Obamacare. It shall stand as his epitaph.

This post was originally published at The Federalist.

The Troubling Premise Behind the Latest Obamacare Lawsuit

On Thursday, a group of Democratic attorneys general received permission to intervene in a lawsuit filed by Texas Attorney General Ken Paxton and other Republican officials. That lawsuit, originally filed in February, seeks to strike down all of Obamacare.

The lawsuit forces me to distinguish between policy preferences and the rule of law. Strictly on the policy, I want to repeal Obamacare as much as the next conservative does. However, in this case, striking down the law through legal fiat would represent judicial activism at its worst—asking unelected judges to do what elected members of Congress took great pains to avoid.

John Roberts’ Logic

Last December, Congress set the individual mandate penalty to zero beginning in January 2019. As others previously argued, the action eliminated the basis on which the Supreme Court found the mandate constitutional. Thus, the lawsuit alleges, the court should strike down the individual mandate—and, consistent with the reasoning of four dissenting justices (Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) in the 2012 NFIB v. Sebelius case—all of Obamacare with it.

Congress Has Spoken

There’s one major flaw with the lawsuit’s logic: While Obamacare did not contain a severability clause, Congress in its infinite wisdom last year chose to eliminate the mandate penalty—and only the mandate penalty. Severability tests the court established work to determine first and foremost “whether the provisions will work as Congress intended,” as the dissenters noted back in 2012.

Because Congress, in the time since Obamacare passed, quite clearly eliminated only the mandate penalty, it demonstrated its intent. Regardless of whether federal courts strike down the mandate—now an edict in law unenforceable by any penalty—as unconstitutional, they cannot, and should not, strike down any other portion of the law.

Anti-Democratic Principle

In essence, the lawsuit asks the federal courts to do what Congress decided last year not to do: repeal all of Obamacare. Rather than working to persuade Congress to go back, consider health care anew, and pass the full repeal lawmakers ran on for four straight election cycles, the litigants instead hope to nullify Obamacare through a deus ex machina intervention of five of nine justices on the Supreme Court.

As a matter of law, the court should do no such thing. Substituting the judgment of unelected judges for popularly elected members of Congress would further erode the institutions supporting the rule of law. The protests on both the left and right regarding last year’s health-care legislation would pale in comparison to any demonstration should five unelected judges now decide to strike down all of Obamacare, and with good reason.

Moreover, this apparent application of situational ethics—“conservatives” supporting judicial activism when it furthers their policy objectives—will only undermine future attempts to constrain legislating from the bench. When it comes to asking courts to strike down massive pieces of legislation, conservatives should be careful what they wish for, because they just might get it—not on Obamacare, but on other major bills they do support.

This post was originally published at The Federalist.