One feature of speculation about how the Supreme Court might rule on the challenge to the ACA subsidies is reference to the Court’s narrow upholding of the individual mandate against constitutional challenge in NFIB v. Sebelius. I’ve heard some conservatives wondering, to put it bluntly, whether the Chief Justice will fold again. This kind of framing, I think, misunderstands the nature of the Chief Justice’s decision in NFIB v. Sebelius and ignores two key differences between that case and the ACA subsidies cases.
I accept the press reports that the Chief Justice changed his vote in the individual mandate cases. But I do not think it in his judicial character to have buckled somehow. The stakes of the case may have led to some re-examination, but I think the Chief Justice became persuaded of the legal merits of the arguments that he ultimately set forth in his opinion. I suppose we’ll never know. So, on to the next issue …
Tom Goldstein argues that “a major lesson to be learned from the Court’s previous decision holding that the ACA is constitutional is that a majority of the Justices do not want to determine the fate of a hugely important social issue that has been debated in this country for decades.” At some level, it blinkers reality to say that consequences don’t matter to judges. But they are less consequential for many. And there are at least two very important differences between the individual mandate challenge and the ACA subsidies challenge that should factor into assessment of the Chief Justice’s likely position. First, a ruling for the individual mandate challengers required the development of constitutional doctrine in a way that a ruling for the ACA subsidies challengers would not. The political branches have long been on fair notice that text of enacted law controls, whereas they may have been lulled into complacency by the Court’s own latitudinarian constructions of the scope of congressional authority under Article I over time. Second, there is no statutory inseverability issue in the ACA subsidies challenge. The decision in NFIB v. Sebelius was made under the shadow of potential statutory inseverability, such that a newly formulated limitation on congressional power could be used to take down the entire ACA in one judicial ruling. While the practical effects of invalidating the IRS regulation in the ACA subsidies could be severe, the legal ruling would itself be much narrower by comparison.
These two differences may partially explain why the Chief Justice might size up the ACA subsidies challenge differently from the individual mandate challenge from a judicial and institutional point of view.
Another piece of the explanation may be his recognition that the Court’s authority stems from its identification with the law, and that identification is easier for people to make when there is relatively clear statutory language in contrast with murky constitutional doctrine that has been treated in accordion-like fashion over time.
Nor can one discount the possibility that, over time, Chief Justice Roberts has come to view President Obama’s commitment the rule of law in a manner similar to how Chief Justice Marshall understood President Jefferson’s commitment to the same.
For all these reasons, I hesitate to draw too close a connection between how Chief Justice Roberts approached the individual mandate challenge and how he might approach the ACA subsidies challenge.
From an interpretive point of view, more relevant data points would be his opinions and votes on similar questions of statutory interpretation. I have been surprised, for example, not to have seen any mention of Bond v. United States in any of the opinions upholding the regulation or in any commentary thus far on the interpretive issues raised. Bond was a case in which Chief Justice Roberts found statutory ambiguity to arise from the improbably broad reach of a statutory definition, the consequences of the interpretation, and the apparent lack of any need to take the broad definition in its full breadth given the background of the law. As Justice Scalia put it in his dissent: “Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous!” In essence, that is at the core of what some critics of Halbig are arguing. And one can see the outlines of a similar argument from the improbably narrow formula for calculating credits, the consequences of adopting this interpretation, and so on. My own view is that this argument should be a loser given the relevant statutory language. But it’s the kind of argument that those who disagree with Halbig need to be making if they are interested in the Chief Justice’s vote.