The wrin­kle in Roberts’s de­ci­sion

The Washington Post Sunday - - SUNDAY OPINION - georgewill@wash­post.com

“What chumps!” — Chief Jus­tice John G. Roberts

Jr., June 29, 2015

Roberts’s in­tel­lec­tual com­plex­ity does not pre­vent him from ex­press­ing him­self pithily, as he did with those words when dis­sent­ing in a case from Ari­zona. Joined by An­tonin Scalia, Clarence Thomas and Sa­muel A. Al­ito Jr., Roberts’s dis­sent should some­what mol­lify con­ser­va­tives who are dis­mayed about his in­ter­pre­tive in­ge­nu­ity four days ear­lier in writ­ing the opin­ion that saved the Af­ford­able Care Act. Fur­ther­more, they, in­clud­ing this colum­nist, may have missed a wrin­kle in Roberts’s ACA opin­ion that will serve con­ser­va­tives’ long-term in­ter­ests.

To end ger­ry­man­ders, Ari­zona vot­ers, by ref­er­en­dum, amended the state’s con­sti­tu­tion to strip the leg­is­la­ture of its con­trol of redistricting. They cre­ated an In­de­pen­dent Redistricting Com­mis­sion (IRC) on which no mem­ber of the leg­is­la­ture may serve.

How­ever, the U.S. Con­sti­tu­tion’s elec­tions clause says, “The times, places and man­ner of hold­ing elec­tions for sen­a­tors and rep­re­sen­ta­tives, shall be pre­scribed in each state by the leg­is­la­ture thereof.” When Ari­zona’s leg­is­la­ture sued, the IRC’s im­plau­si­ble re­sponse was: The Con­sti­tu­tion’s Framers did not use the word “leg­is­la­ture” as it was then and still is used, to de­note the rep­re­sen­ta­tive bod­ies that make states’ laws. Rather, the IRC said the Framers used “leg­is­la­ture” ec­cen­tri­cally, to mean any process, such as a ref­er­en­dum, that cre­ates any en­tity, such as the IRC, that pro­duces bind­ing edicts.

Im­plau­si­bil­ity is not an in­sur­mount­able bar­rier to per­suad­ing a Supreme Court ma­jor­ity, and last week five jus­tices ac­cepted the IRC’s ar­gu­ment. Ruth Bader Gins­burg, joined by An­thony M. Kennedy, Stephen G. Breyer, So­nia So­tomayor and Elena Ka­gan, said: There is “no sug­ges­tion” that when the Framers stip­u­lated that the man­ner of a state’s elec­tions should be de­ter­mined by “the leg­is­la­ture thereof” the Framers nec­es­sar­ily meant “the state’s rep­re­sen­ta­tive body.”

This det­o­nated Roberts, who be­gan his dis­sent by say­ing: The re­form­ers who waged “an ar­du­ous, decades-long cam­paign” to achieve rat­i­fi­ca­tion in 1913 of the 17th Amend­ment es­tab­lish­ing pop­u­lar elec­tion of U.S. sen­a­tors could have saved them­selves the trou­ble. They could have adopted what Roberts calls the “magic trick” the ma­jor­ity per­formed re­gard­ing Ari­zona. What chumps the re­form­ers were for not sim­ply as­sert­ing this: Sure, the Framers stip­u­lated that two sen­a­tors from each state were to be cho­sen “by the leg­is­la­ture thereof,” but the Framers re­ally meant “by the peo­ple.”

Roberts said the ma­jor­ity wasted much ink de­fend­ing a propo­si­tion that “no­body doubts” — that the peo­ple of Ari­zona can, un­der their state con­sti­tu­tion, ex­er­cise law­mak­ing pow­ers. They can­not, how­ever, es­tab­lish gov­ern­men­tal pro­cesses that vi­o­late the U.S. Con­sti­tu­tion. With many ci­ta­tions from the Fed­er­al­ist Pa­pers and Supreme Court prece­dents, Roberts em­pha­sized that a state’s “leg­is­la­ture” was not a term of un­cer­tain mean­ing when the Framers put it into the Con­sti­tu­tion.

Many con­ser­va­tives may be mut­ter­ing, “Where was this se­man­ti­cally punc­til­ious Roberts four days ear­lier?” Then, Roberts said that although the Af­ford­able Care Act says in­sur­ance sub­si­dies are to be dis­trib­uted by the IRS through ex­changes “es­tab­lished by the state,” the lan­guage does not mean this when read in the con­text of Congress’s clear pur­pose (broad health-care cov­er­age). So, the IRS can dis­trib­ute sub­si­dies through ex­changes es­tab­lished by the fed­eral gov­ern­ment.

This is not be­cause the court de­ferred to the IRS, an in­de­pen­dent agency, in in­ter­pret­ing the statute. On the con­trary, the court de­nied the power of the IRS — and, in­fer­en­tially, the power of the ex­ec­u­tive branch — to be the fi­nal word on statu­tory in­ter­pre­ta­tion. In­stead, the court, in the act of def­er­ence to Congress’s ob­jec­tive in en­act­ing the ACA, as­serted its power to ren­der the fi­nal, if prop­erly def­er­en­tial, word in in­ter­pret­ing what Congress does. Thus did ju­di­cial ag­gres­sion against one branch come cloaked in the cloth of def­er­ence to another.

Con­stru­ing the Con­sti­tu­tion in the Ari­zona case, Roberts said the Framers’ lan­guage was as clear as their pur­pose, to which def­er­ence is due. In­ter­pret­ing the health-care statute, Roberts said Congress’s lan­guage was “inart­ful” but, read in the con­text of the ACA’s struc­ture, was not am­bigu­ous and should not de­feat Congress’s pur­pose, to which the court owes def­er­ence.

Roberts’s rul­ing ad­vanced a cru­cial con­ser­va­tive ob­jec­tive, that of claw­ing back power from the ex­ec­u­tive branch and in­de­pen­dent agen­cies that in­creas­ingly op­er­ate es­sen­tially free from con­gres­sional con­trol and gen­er­ally obe­di­ent to pres­i­dents. If con­ser­va­tives can­not achieve their ob­jec­tives, in­clud­ing ACA re­peal, through the leg­isla­tive branch, con­ser­vatism’s fu­ture is too bleak to be much di­min­ished by any­thing courts do. If, how­ever, con­ser­va­tives can ad­vance their agenda through Congress, they will ben­e­fit from Roberts’s ACA opin­ion, which but­tresses leg­isla­tive supremacy.

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