March 29, 2019

WHAT COULD GO WRONG? An Obamacare Rematch With John Roberts?

Ramesh Ponnuru:

In the current case, opponents of Obamacare are challenging the law on the basis that Congress, in 2017, got rid of the tax on people who go without insurance. The opponents’ theory, endorsed by one judge, is that if the coverage mandate was saved only by relabeling it a tax and then the tax was eliminated, the provision has to be struck down; and if it is struck down, the rest of the law has to be nullified, too, since Congress would not have adopted it without the provision.

It is a screwy case. By choosing to eliminate the tax without touching the rest of the law, Congress in 2017 separated the issues, and the courts, one would think, should follow its lead.

But Biskupic’s story about Roberts’s handling of the Obamacare case seven years ago tells us something more about today’s challenge. It suggests that Roberts is reluctant to move against Obamacare even when considering a case that he thinks has real legal merit.

It sure would be nice to have justices who rule purely on the merits, but as Ponnuru wrote earlier in his piece, “Biskupic’s story makes it sound as though Roberts, and to a lesser extent Breyer and Kagan, engaged in unseemly politicking without much relation to constitutional logic.”

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