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.

A Retiree Health Care “Fix” That Isn’t

Since the Affordable Care Act became law in 2010, supporters and opponents have argued about whether the measure would lead employers to drop health coverage for workers. This issue has returned to the news; Wal-Mart recently decided to drop coverage for some of its part-time workers, and The Wall Street Journal reported this week that some firms, seeking to avoid employer penalties under the law, have encouraged employees to enroll in Medicaid.

While their private-sector counterparts have received more attention, public-sector employees–particularly retirees–could face similar problems with dropped coverage. The Atlantic reported last week on the trend of cities in financial distress, from Detroit to Chicago to Sheboygan, Wis., reducing or eliminating coverage and seeking to use the insurance exchanges to get out of their health-care obligations to retirees. As one pension expert quoted in the Atlantic noted, “every public-sector employer is looking at the exchanges as a potential way to get out of the unfunded liabilities that the public sector is bearing.”

But transferring state and municipal retirees to insurance plans on the exchanges doesn’t reduce the amount of unfunded liabilities; it shifts the cost from state and local governments to Washington. Many of the retirees in question could qualify for federal premium and cost-sharing subsidies for their exchange insurance policies. Even by Washington standards, the magnitude of the problem is daunting: A 2012 Pew study found that state governments held $627 billion in unfunded retiree health obligations; adding local government health plans could push those obligations toward $1 trillion.

State governments are grappling with a difficult revenue environment, while the federal government faces long-term fiscal challenges caused by demographic shifts. Given these dynamics, what looks to some mayors like a quick fix to their budget woes–shifting retirees to the federal exchanges–could, in the broader fiscal sense, amount to shifting deck chairs on the Titanic. If efforts by cities and states ultimately encourage private-sector firms to drop health coverage for their workers and retirees, they will add to our nation’s collective entitlement obligations—and could end up sinking our federal fiscal ship.

This post was originally published at the Wall Street Journal Think Tank blog.