“Josh Blackman ruefully explained … the decision effectively seemed to elevate the ACA into a kind of ‘untouchable super-statute that is beyond reach.'”

June 27th, 2015

In the New Republic, Simon Lazarus notes that after King v. Burwell, the Chief Justice is in charge. He quotes a comment I made on the King v. Burwell FedSoc conference call a few hours after the ruling (in truth, that day was a blur, and I barely remember saying it!).

Last Thursday, Roberts dashed conservative hopes and liberal fears of a partisan political decision. To the contrary, as conservative blogger Josh Blackman ruefully explained on a Federalist Society post-mortem conference call, the decision effectively seemed to elevate the ACA into a kind of “untouchable super-statute that is beyond reach.” Blackman characterized Roberts’s message as, “This is over . . . We’re through”—meaning, we’re through hearing cases ginned up by our clever lawyer friends to precipitate judicial de facto repeal of the law.

Alas, the Chief has signaled that we’re done here. I expect the D.C. Circuit to promptly dispose of the origination clause challenge. It has been pending for about 8 months–I think they were holding it for King v. Burwell. There’s no way there are four votes for certiorari now, regardless of the merits.

Jack Balkin in a characteristically astute post notes that the ACA is now part of the “social contract” and is a “framework statute.”  I don’t know if this was true after NFIB. Arguably, the Chief’s decision could be characterized as one of constitutional avoidance. But King v. Burwell had no constitutional overtones, yet the Chief approached it in a similar manner to save the law again.

As I wrote in essay on CaseText, the Chief Justice has introduced the “Obamacare Canon.” It provides that judges from now on should put a thumb on the scale of the ACA to avoid disrupting health care markets. After all, it’s too big to fail! Until the Court’s other decision this week is relied on to expand the notion of positive liberty to include a dignified right to health care.