Over at the Weekly Standard, attorney Adam J. White has a good piece describing the legal challenge to the Affordable Care Act that the Supreme Court has just decided to hear. Or I should rather say the legal challenge to the Obama administration’s implementation of the Affordable Care Act, since the suit in question claims that the administration is acting contrary to the wording of the law. White works for a firm that filed briefs for the challengers when the case was before the lower courts, and he is pretty clearly sympathetic to the challengers. Nevertheless, I think the article gives a pretty good overview of the issues in the case for anybody who wants to know what it is about.
One particularly interesting part of the article is its treatment of the question on everybody’s mind: how will the Chief Justice, whose vote was responsible for saving the law a couple of years ago, vote in this case? The temptation is to use John Roberts’s conduct in NFIB v. Sebelius as a tool of predicting what he will do here. However, as White explains, the cases are different. The former was a constitutional challenge, while this one only involves a question of statutory interpretation. The following passages of the article are particularly helpful.
Indeed, surveying the Court’s recent decisions, the most direct analogy isn’t NFIB’s constitutional decision, but rather the Court’s decision last June in a statutory dispute arising from another of the Obama administration’s landmark policies, the Environmental Protection Act’s climate change rules. InUtility Air Regulatory Group v. EPA, states and private parties challenged the administration’s interpretation of the Clean Air Act. As with Obamacare, the administration was attempting to construct and enforce a broad regulatory program that poorly fit the statutory text. In that case, the EPA recognized that to impose its climate change regulations, using the threshold emissions levels required by the Clean Air Act’s plain terms, would have rendered the program ruinously expensive for the public, and thus politically and practically infeasible. To avoid such “absurd results,” the EPA announced that it would not bind itself by the Clean Air Act’s specific requirements.
The Supreme Court rejected that argument by a 5-4 vote?—?with, in case you are curious, Chief Justice Roberts joining the five-justice majority. “The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration,” the Court explained, “but it does not include a power to revise clear statutory terms that turn out not to work in practice.”
Moreover, as White goes on to note, this is not an approach to the general question that is distinctively “conservative.”
And while conservative and liberal justices might hold different views about how these principles apply in a given case, the principles themselves are hardly partisan. In the other big EPA case decided by the Court this year, EPA v. EME Homer City Generation, Justice Ruth Bader Ginsburg wrote for the Court that “however sensible (or not)” a policy argument might be, “a reviewing court’s ‘task is to apply the text [of the statute], not to improve upon it.’?” As it happens, the six-justice majority included the Court’s usual “swing vote,” Justice Anthony Kennedy, but also the chief justice.