Yesterday’s oral argument before the Supreme Court was most notable in the collapsing of the false narrative used by many Democratic senators and media figures in the Barrett confirmation that the Affordable Care Act was close to being overturned in the case of California v. Texas. That conspiracy theory (of which suggested that the rush to confirm Barrett was to supply the final needed vote) was shattered when both Chief Justice John Roberts and Associate Justice Brett Kavanaugh repeated their position in favor of severance — a position that would guarantee the survival of the ACA. What was equally notable however was the slightly pathetic scene of Roberts effectively acknowledging that he might have been a chump in accepting the arguments on the individual mandate eight years ago in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). For years, Roberts has been on a collision course with himself — and yesterday he had a one-person pileup.
Eight years ago, Roberts sided with the conservative justices that requiring individuals to buy insurance was a flagrant violation of federalism guarantees, a view I shared. But in what read like a last minute addition, he voted with the four liberal justices in declaring that none of that matters because he viewed the individual mandate as a tax. It was a surprising turn, since both sides had denied that this was a tax. But by declaring the individual mandate an exercise of the taxing authority of Congress, Roberts saved the law. He insisted the individual mandate was the thumping heart of ObamaCare, which could not survive without its tax revenue from the healthy young citizens who would pay more into the system than they took out. Roberts wrote that “the individual mandate was Congress’s solution” to the existential problems associated with a national health care system. Likewise, the liberal justices joined Roberts in saying that, without the individual mandate, the other parts of the ACA “alone will not work.”
His decision, refashioning the mandate as a tax, appeared artificial and opportunistic to many of us. It also sowed the seeds of its own destruction by not just resting the survival of ObamaCare on the existence of the tax but by insisting that the law could not survive without it. Congress called his bluff by zeroing out the tax, which was the very thing that Roberts had said was needed to sustain ObamaCare as a constitutional matter.
In the oral argument in 2012, Roberts explored whether Congress could force Americans to buy broccoli to make themselves healthier. While Roberts ultimately ruled that the individual mandate (and broccoli compulsion) was a violation of federalism, he made all of that discussion moot by declaring the individual mandate a tax.
Now, the supporters of the ACA are back and insisting that the individual mandate was never really the essential element that they claimed to the Court. The painful position of Roberts was evident in oral argument:
“Eight years ago, those defending the mandate emphasized that it was the key to the whole act. Everything turned on getting money from people forced to buy insurance to cover all the other shortfalls in the expansion of healthcare. But now the representation is that, oh, no, everything’s fine without it. Why the bait and switch? . . . We spent all that time talking about broccoli for nothing?”
Well, it was not for nothing. It was a bait and switch. What is interesting is that Roberts took the bait and now appears ready to do his own switch. He suggested that he would again save the ACA through severance but do so by recognizing that the basis of his earlier opinion is now invalid. Indeed, Roberts himself could find the individual mandate unconstitutional.
So, Roberts could create a curious precedent: he saved the ACA in 2012 by declaring the individual mandate essential to the survival of Act and then may save the ACA again in 2020 by declaring that the individual mandate is not essential to the survival of the Act. If that seems confusing, welcome to the world of Chief Justice Roberts on the ACA.