Robert’s ObamaCare Opinion and His Game Plan

Chief Justice Roberts wrote the majority opinion in King v Burwell or Obamacare case. He rewrote the plain language of the act to allow payments of subsidies to persons not actually eligible under a direct reading of the act. He idid so to keep the act working.

Robert’s has made a habit of correcting, as he calls it, “Inartful drafting.” He even admits that the Affordable Care Act is full of such language.

So what is his game plan?

I think this particular Chief Justice believes so strongly in the legislative process, that he feels compelled to correct and allow legislation, no matter how badly written, to remain in force and not be barred on constitutional grounds.

There is another, and I think, equally powerful argument to make and that is that Roberts is telling the American people, you elected these people, they passed this legislation and now you live with the consequences of your actions. If you want something else, elect someone else.

I really think that is it. It is deference to the legislature and a reminder to the people that elections are serious.

George Will joins me in this opinion as he wrote: “The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging.”

After this week, major political issues have been taken off the table to the relief of many Republicans who did not want to have to oppose same sex marriage in 2016 or have their majorities in the house and senate actually pass legislation that corrected the error in Obamacare. I just don’t think that would work well.

Will continues with “Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences.” Read more

I have to agree, however, I see long term benefits from Roberts’ Game Plan.  We’ll wait and see.

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