Silver linings of King v. Burwell • The Hill
Convention claims the Supreme Court’s King v. Burwell decision is a loss for conservatives. But Democrats shouldn’t celebrate. Politically, it’s a win for the right, skirting potential harm in terms of legal precedent as well as improving positioning for 2016.
Many viewed the chief precedential purpose of the case to be the establishment of clear limits on administrative overreach. The downside was a further removal of those limits. Accordingly, the initial announcement of the ruling led to collective concern that the court had followed the court of appeals and expanded “Chevron deference,” the controversial doctrine that essentially holds that courts should defer to executive branch interpretation of statues, even if such interpretations effectively revise the law as written by Congress.
But the court didn’t sanction such administrative overreach in the King ruling. Instead it said that when Congress wrote “State” it really meant “state or federal.” That is, it said the IRS was correctly interpreting the law, rather than deferring to a reinterpretation.
There is much to criticize in such a Humpty Dumpty theory of law (“ ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ”). It leaves every law open to the subjective reinterpretation of politicized judges. It is disheartening to have clear lawlessness be ignored because of political expediency. And, from a policy perspective, the court saved ObamaCare’s bacon yet again.
Still, the court didn’t expand Chevron when it had the chance. And that means the court hasn’t halted its long march away from sanctioning systemic executive overreach. La Rochefoucauld famously said that “hypocrisy is the tribute vice pays to virtue.” If so, then Chief Justice John Roberts’s insistence that he was properly interpreting a statute may end up accelerating the move away from Chevron and its excesses. We can almost read the amicus briefs now.
The King decision is also a political gift to the right. It allows Republicans to dodge a politically perilous time, as internal fights over how to respond to a victory in King had the potential to be deeply divisive through 2016. If the court had invalidated the IRS reinterpretation of the Affordable Care Act, Americans in 34 states would have been freed from ObamaCare’s mandates and lost its subsidies. While Americans in those states would have been better off without ObamaCare’s employer and individual mandates, penalties and taxes, the left and mainstream press inevitably would have focused on those who lost subsidies, and blamed Republicans.
Those who supported providing transition assistance for those who may have lost subsidies were bracing to be branded as supporting “ObamaCare lite.” Such criticism could have harmed the political prospects of solution-minded conservatives who already face challenging reelection bids, like Sen. Ron Johnson (R-Wis.).
From a policy perspective, if the pressure from the right had prevented passage of a conservative congressional solution, Congress either would have done nothing, keeping much of the base happy that Republicans weren’t fixing a Democrat problem but increasing the odds of states forming state exchanges. Or had the public believed that it Congress needed to fix this problem, regardless of whose fault it was, enough Republicans might in the end have joined Democrats to pass an extension of ObamaCare, subsidies, mandates and all. Neither outcome would have sat well with non-Democrat voters.
But now the court has made clear it will not rescue the nation from ObamaCare. And its decisions taken together confirm that big government is on the march, that an imperial court abets that expansion by expunging obvious limits to its power, and that the court is quite uninterested in all those checks and balances that we were quaintly taught and naïve enough to believe.
That makes for a galvanizing GOP message: The only way to get rid of ObamaCare, and to rein in a judiciary that no longer sees itself as an umpire but as a legislator, is to elect a Senate and a president committed to repealing and replacing ObamaCare, and appointing judges who only aspire to read law, not create it.
That is even more motivating once one understands that whoever holds the presidency for the next eight years is likely to have to fill five Supreme Court vacancies, making for a commanding majority one way or the other.
Even more than would have otherwise been the case, 2016 will become both a referendum on ObamaCare — if you like it and want to keep it, vote Democrat; if you hate it and want to see it replaced, vote Republican — and on whether the courts should be creating law or constrained by it. Democrats may be complacent after years of steady gains, but Republicans, who have seen how much damage can be done in just two terms, should have intensity on their side.
For all the celebrating by the left this week, the political beneficiary will be the GOP. Now all they have to do is take advantage of it.
Higgins is president and CEO of Independent Women’s Voice.