by Jason Jackson
Chief Justice John Roberts is taking a lot of heat from conservatives over his rulings on Obamacare, but amidst these lost legal battles the Chief may actually be laying the ground work for winning a broader war. Consider first the decision issued Thursday in King v. Burwell. Roberts, writing for the Court, concluded that federal subsidies were available to all eligible recipients, despite language within the Act itself that suggested eligibility only flowed to recipients on state exchanges.
Before we condemn Roberts for a liberal opinion it’s important to note that the Chief gets to write the Opinion of the Court himself when he is in the majority, and we can’t know with certainty that Roberts was the deciding vote. It may very well be that Roberts found himself in a 5-4 minority and shifted to give the liberals a 6-3 victory so that he could write the opinion and limit its scope. And limit it he did – Roberts opinion expressly denies that Congress has the power to delegate to the executive branch decisions of this magnitude, nor is the executive branch entitled to deference in its interpretation of statutes of this magnitude. Limiting the executive branch’s power to legislate through administrative rule making has long been a goal of conservative jurisprudence, and Justice Roberts managed to pull four other liberal justices into an opinion establishing such a limit.
Now Justice Robert’s decision in National Federation of Independent Business v. Sebelius back in 2012 is less excusable but even there is a silver lining for conservatives. In his decision, Justice Robert’s joined again with the four liberals on the Court to conclude that the individual mandate was constitutional under Congress’ taxing power. The silver lining is that in so deciding, Robert’s rejected that the Commerce Clause empowered Congress to enact the mandate, and got four liberal judges to acquiesce to a limitation on the Commerce Clause. The decision also provided a win for federalism advocates, holding that the Medicare expansion provision was coercive to states, and thus an unconstitutional violation of Congress’ spending power.
The Chief Justice bears a special burden of being a steward of the Court’s reputation and legitimacy. The Chief must bear this burden while also maintaining fidelity with the law. Chief Justice Roberts is deserving of some criticism he is receiving for failing to strike the right balance and allowing politics to influence his opinions, but even in the face of these lost legal battles the Chief is establishing some strong conservative legal precedents. By siding with the liberal majorities in the Obamacare cases, the Chief is choosing not to die on these legal hills but rather to join with the victors so that he can set the terms of the victory and choose the terrain of the legal battles to come.
Jason Jackson is an attorney and serves as Vice Chairman of the Republican Liberty Caucus of San Diego. He is a graduate of the United States Naval Academy and a veteran of the War on Terrorism, earning the Navy Commendation Medal, the Navy Achievement Medal, and numerous campaign and unit citations for his service in the conflict. He has a master’s degree in Political Science from San Diego State University, and a law degree from Thomas Jefferson School of Law in San Diego, CA.