The Wrinkle in the ACA Decision

By George Will

Saturday, July 04, 2015

     “What chumps!”

    – Chief Justice John Roberts, June 29, 2015

Roberts’s intellectual complexity does not prevent him from expressing himself pithily, as he did with those words when dissenting in a case from Arizona. Joined by Antonin Scalia, Clarence Thomas, and Samuel Alito, Roberts’s dissent should somewhat mollify conservatives who are dismayed about his interpretive ingenuity four days earlier in writing the opinion that saved the Affordable Care Act. Furthermore, they, including this columnist, may have missed a wrinkle in Roberts’s ACA opinion that will serve conservatives’ long-term interests.

To end gerrymanders, Arizona voters, by referendum, amended the state’s constitution to strip the legislature of its control of redistricting. They created an Independent Redistricting Commission (IRC) on which no member of the legislature may serve.

However, the U.S. Constitution’s Elections Clause says, “The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” When Arizona’s legislature sued, the IRC’s implausible response was: The Constitution’s Framers did not use the word “legislature” as it was then and still is used, to denote the representative bodies that make states’ laws. Rather, the IRC said the Framers used “legislature” eccentrically, to mean any process, such as a referendum, that creates any entity, such as the IRC, that produces binding edicts.

Implausibility is not an insurmountable barrier to persuading a Supreme Court majority, and last week five justices accepted the IRC’s argument. Ruth Bader Ginsburg, joined by Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, said: There is “no suggestion” that when the Framers stipulated that the manner of a state’s elections should be determined of “the legislature thereof” the Framers necessarily meant “the state’s representative body.”

This detonated Roberts, who began his dissent by saying: The reformers who waged “an arduous, decades-long campaign” to achieve ratification in 1913 of the 17th Amendment establishing popular election of U.S. senators could have saved themselves the trouble. They could have adopted what Roberts calls the “magic trick” the majority performed regarding Arizona. What chumps the reformers were for not simply asserting this: Sure, the Framers stipulated that two senators from each state were to be chosen “by the legislature thereof,” but the Framers really meant “by the people.”

Roberts said the majority wasted much ink defending a proposition that “nobody doubts” — that the people of Arizona can, under their state constitution, exercise lawmaking powers. They cannot, however, establish governmental processes that violate the U.S. Constitution. With many citations from The Federalist Papers and Supreme Court precedents, Roberts emphasized that a state’s “legislature” was not a term of uncertain meaning when the Framers put it into the Constitution.

Many conservatives may be muttering, “Where was this semantically punctilious Roberts four days earlier?” Then, Roberts said that although the Affordable Care Act says insurance subsidies are to be distributed by the IRS through exchanges “established by the state,” the language does not mean this when read in the context of Congress’s clear purpose (broad health-care coverage). So, the IRS can distribute subsidies through exchanges established by the federal government.

This is not because the court deferred to the IRS, an independent agency, in interpreting the statute. On the contrary, the court denied the power of the IRS — and, inferentially, the power of the executive branch — to be the final word on statutory interpretation. Instead, the court, in the act of deference to Congress’s objective in enacting the ACA, asserted its power to render the final, if properly deferential, word in interpreting what Congress does. Thus did judicial aggression against one branch come cloaked in the cloth of deference to another.

Construing the Constitution in the Arizona case, Roberts said the Framers’ language was as clear as their purpose, to which deference is due. Interpreting the health-care statute, Roberts said Congress’s language was “inartful” but, read in the context of the ACA’s structure, was not ambiguous and should not defeat Congress’s purpose, to which the court owes deference.

Roberts’s ruling advanced a crucial conservative objective, that of clawing back power from the executive branch and independent agencies that increasingly operate essentially free from congressional control and generally obedient to presidents. If conservatives cannot achieve their objectives, including ACA repeal, through the legislative branch, conservatism’s future is too bleak to be much diminished by anything courts do. If, however, conservatives can advance their agenda through Congress, they will benefit from Roberts’s ACA opinion, which buttresses legislative supremacy.