JOHN ROBERTS, the Chief Justice of the Supreme Court, has conservatives vexed. To many of them, Mr Roberts' dissent to the majority's decision legalising gay marriage today seems flatly inconsistent with his reasoning in the King v Burwell case, which saved Obamacare. "Under the Constitution", Mr Roberts wrote in his dissent in the gay marriage case, "judges have power to say what the law is, not what it should be". But didn't the court effectively rewrite the text of the Obamacare just two days ago when it ruled that insurance exchanges established by the federal government should be counted among those "established by the states"?
"The inside of John Roberts's head must be a very interesting place," tweets John Podhoretz, editor of Commentary. "Kind of like the Civil War, only no Confederate flag". Mr Podhoretz vividly captures a common conservative sentiment about Mr Roberts today.
It is easy to see why Mr Roberts' two opinions may seem at odds. He seems both willing and unwilling to have the court say what the law should be. But Mr Roberts is in fact totally consistent. A closer look at his opinions on Obamacare and gay marriage show them both to flow neatly from a reasonable and perfectly coherent conception of the division of powers.
In the majority decision in King v Burwell, authored by Mr Roberts, the court ruled that, taking into account the whole context and design of the Affordable Care Act, it is clear enough that the legislature intended to make those who purchase insurance policies from federally established health insurance exchanges eligible for tax credits, despite the fact that the clear language of the Affordable Care Act seems to restrict eligibility to those who buy policies on exchanges established by one of the states. To conservatives and libertarians who had hoped to see Obamacare overturned, it seems that the court's majority, with Mr Roberts in the lead, has taken it upon itself to rewrite a botched piece of legislation.
However, Mr Roberts, in King v Burwell, does not see the court as saying what the law should be, as a philosophical or moral matter. He sees the court saying what the law actually is, as a matter of textual interpretation. The problem with the text of the Affordable Care Act is that it is ambiguous. The overall design and intention of the legislation seems to be inconsistent with some of its language. In cases like this, Mr Robert's said, it is up to the court to resolve the ambiguity and determine once and for all the correct reading of the legislation. If you simply assume that the plaintiff's reading of Obamacare was the correct one, and that congress really intended to restrict subsidies to state-based exchanges, it may seem that the court is rewriting the law. But Mr Roberts sees himself as playing a constrained umpiring role, settling a dispute over what the law says, and his decision is actually a strong statement of Congress's policy-making supremacy over both the court and the executive branch.
What's interesting, and so far under-appreciated about Mr Roberts' decision in the Obamacare case, is that the court explicitly denies that the executive branch had the authority to resolve the ambiguities in the text of the Affordable Care Act. Many commentators predicted that the case would be decided on a principle known as "Chevron deference", first articulated in Chevron USA v Natural Resources Defence Council, which states that the court should defer to the executive branch's interpretation of ambiguous statutory language, so long as it is reasonable. But some on the court, Mr Roberts included, don't much care for the Chevron principle. It weakens the power of judicial review, the court's authority "to say what the law is", as first set forth in Marbury v Madison, which Mr Roberts duly mentions in his ruling. Now, in cases of large "economic and political significance", the Chevron principle does not apply. The court had not fully embraced this limit on the executive branch's authority to interpret the meaning of legislation until now, in the Obamacare decision. Although the court happens to agree with the IRS's interpretation of the statute, Mr Roberts' ruling goes to some pains to say that, because the IRS had not been specifically empowered by the legislature to make this sort of economically and politically significant determination, it did not have the authority to do so. The court need not defer to the use of authority the executive branch doesn't have.
This is a very important development. The court has ruled that when the interpretation of ambiguous legislation has potentially profound consequences, and congress didn't delegate interpretative authority to a specific administrative agency, it is the court's job, not the executive's, to decide what the law says. "It is...the Court's task", Mr Roberts wrote, "to determine the correct reading" of an unclear law. Which is a nice way of telling the executive branch to take Chevron deference and stuff it.
Cass Sunstein, a Harvard law professor, calls Mr Roberts opinion "a masterwork of indirection". Mr Sunstein, who had a hand in the executive branch's interpretation of the Obamacare as the former head of the White House Office of Information and Regulatory Affairs, says that although the decision may vindicate the president's pet programme, "it is also a strong assertion of the court's, and not the executive branch's, ultimate power to say what the law is".
R.J. Lehmann, a senior fellow at R Street, a free-market think tank, sees a big smaller-government upside to Mr Roberts' Obamacare ruling. "Roberts has just opened a huge new avenue for challenges to administrative rulemaking", Mr Lehmann writes. "From labour laws to environmental standards—not to mentions reams and reams of tax rulings—there’s no shortage of federal rules" now open to challenge. Indeed, conservatives and libertarians may soon happily come to rely on the Obamacare ruling in their quest to rein in an unruly executive bureaucracy. If they do so, they'll be conceding, at least implicitly, the model of the division of powers Mr Roberts has so cagily persuaded the court's liberals to sign on to. But this model is manifestly one of the legislature's rule-making supremacy, and the court's secondary, interpretive authority. Congress legislates. The executive gets to decide what ambiguous legislation means only if the decision doesn't have important economic or political consequences, or if congress has granted that authority. Otherwise, it is up the court to settle what the law says.
In this light, Robert's dissent on gay marriage makes perfect sense. Mr Robert's complaint, in a nutshell, is that the court's majority, in finding an equal right to marry implicit in the constitution, has usurped the legislative function. Mr Roberts admits that the moral and practical case for same-sex marriage has "undeniable appeal", which has indeed swayed the legislatures in a number of states into legalising gay marriage. "But this Court is not a legislature" Mr Roberts writes. "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be". That is to say, the court has the power to interpret legislation, as in the Obamacare case, and to say whether or not legislation is inconsistent with the higher law of the constitution, as the court interprets it. According to Mr Roberts, because "the Constitution does not enact any one theory of marriage", it remains up the states to decide what marriage means. When the court divines an equal right to marry from a recent and swiftly developing conception of freedom that five judges now find implicit in constitutional principles, but which is explicitly contradicted by legislation in a majority of states, "It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question."
Not only is Mr Roberts totally consistent, I'm afraid he's right in both cases. In the Obamacare case, Mr Roberts, leading the majority, exercised the court's legitimate authority to interpret legislation, while putting the Obama administration on notice that it does not have the authority to make potentially profound judgment calls, even if they happen to be correct. In so doing, he helped save what is, in my opinion, a very bad piece of legislation, while cleverly opening a new route for beating back the bureaucracy. In his dissent to the court majority's decision on gay marriage, Mr Roberts argued that the court has stretched its interpretative authority much too far, and has, in effect, written a brand new law. It may be the case, as I believe, that it is very, very good law. However, one may be gleeful about the result while suspecting that Mr Robert's is nevertheless correct: this isn't how it ought to have been decided.
http://www.economist.com/blogs/democracyinamerica/2015/06/obamacare-and-gay-marriage
