Inside The Strategy To Persuade John Roberts To Save Obamacare

Supreme Court Chief Justice John Roberts, right, and Associate Justice Antonin Scalia attend the funeral of former President Gerald Ford in the Capitol Rotunda in Washington Saturday, Dec. 30, 2006. (AP Photo/Charles Dharapak)
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WASHINGTON — The fate of Obamacare may once again rest with Chief Justice John Roberts.

The law’s defenders in King v. Burwell are preoccupied with courting the chief justice, whom they view as their most “winnable” swing vote, according to sources close to the case. In 2012 he broke with conservatives and saved the Affordable Care Act from the politically-charged legal attack that nearly killed it.

“As a matter of legal doctrine it’s not a difficult case. What’s making it difficult is the politics of the ACA. And the chief justice has already shown that he’s able to rise above politics,” said Yale law professor Abbe Gluck, who filed a brief in support of the ACA subsidies at stake.

The law’s defenders want the Court to believe that its legitimacy would suffer if it guts a sitting president’s signature initiative in a case they claim is a partisan hit job. They also want to stress that the real world consequences would be devastating for millions, and that Congress has no viable plan to prevent the chaos in the health care system.

“The chief cares very much about preserving the credibility of the court and assuring that it doesn’t act as a political institution,” said University of Michigan law professor Nick Bagley, who supports the government’s view. “This case is widely perceived as an ideological bid by opponents of the ACA to revisit a political decision that’s already been made.”

Legally, part of the Obama administration’s strategy is to shatter the narrative that the law’s authors intended to withhold the subsidies to entice states to build exchanges. The government will argue that the statute, read as a whole, supports broad subsidy eligibility and that legal precedent requires deference to agencies implementing the law if the text is ambiguous.

One way for the Obama administration to appeal to Roberts is to offer him a way to uphold the subsidies while advancing long-term conservative legal goals, as he did in 2012 by making the Medicaid expansion optional.

That’s what its lawyers are effectively doing when they contend that it would violate states’ rights to deny subsidies without a clear warning that they were contingent on setting up state exchanges. The federalism argument is a late addition to the strategy — the government didn’t make it at the trial court level.

“It has been the conservative project for years to get federalism entrenched as part of the everyday bucket when deciding cases,” Gluck said. “It’s certainly possible that those doctrines [being advocated here in favor of the Obamacare subsidies] can be used to further principles that are associated with conservative values.”

The administration’s other challenge with Roberts, apart from the poor wording in the statute, is that unlike in 2012 the upcoming case doesn’t require him to reinterpret the Constitution. Instead Roberts could argue, as he did when he slashed the Voting Rights Act, that Congress is free to fix the law. To counter this argument, ACA defenders contend that the Republican-led Congress has no viable plan to do so.

Obamacare legal defenders are less optimistic about winning over Justice Anthony Kennedy, despite his reputation as the typical swing vote, given his demonstrated antipathy toward the ACA in 2012 and the 2014 Hobby Lobby case over the birth control mandate. The four Democratic-appointed justices are seen as a safe bet to uphold the subsidies, while Republican-appointed Justices Antonin Scalia, Clarence Thomas and Samuel Alito are all but written off.

Conservative legal experts are also worried about losing Chief Justice Roberts, though they only say so privately. Publicly they are confident in victory, but Roberts’ protectiveness of the court’s institutional standing makes them fret that he’ll be reluctant to dismantle Obamacare. Michael Carvin, the lawyer who will argue before the justices for King, told TPM in September (before the Supreme Court took the case) that he didn’t expect to lose any of the five Republican-appointed justices.

Neera Tanden, the president of the Center for American Progress and a member of Obama’s health care team during the drafting of the law, told TPM that the Court would face public blowback if it invalidates the subsidies and puts insurance out of reach for millions. She said the real world consequences “will and should play a large role, if not the largest role, in the decision.”

“It’ll be nine justices making a decision that adversely affects 9 million people. So of course, if the court chooses to go down a road that creates chaos for millions of people, they will be held accountable,” Tanden said in an interview. “We would really be returning to a pre-New Deal period, looking back 100 years where the Court’s judicial activism unraveled legislation by elected members of Congress.”

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