How John Roberts' ObamaCare apostasy helped conservatives crush Obama's environmental overreach

As far as the conservative opponents of ObamaCare are concerned, Chief Justice John Roberts is the arch villain who swapped his black robe for a red coat when penning his King v. Burwell ruling. He had an opportunity to deliver a body blow to this draconian ObamaCare legislation by outlawing subsidies through federal exchanges. Instead, he concocted an exotic rationale to justify them — saving the law for the second time.

Conservative columnist George Will accused Roberts of assuming the role of a legislator, thereby "damaging all institutions, not least his court." Likewise, John Podhoretz called Roberts' logic "twisted" and "ludicrous." Jonathan Adler, the law professor who was the legal brains behind the lawsuit, observed that the "umpire has decided it's okay to pinch hit to ensure the right team wins." And yours truly, in a fit of pique, declared that on ObamaCare, "Scotus Fuctus"! Liberals, conversely, exulted that Roberts had "smacked" ObamaCare opponents.

But upon reflection, it seems at least possible that there were some larger purposes behind Roberts' apostasy that conservatives might yet come to appreciate. And primary among them is his outright rejection of the Chevron deference that courts have long used to give executive bureaucracies wide latitude to exploit statutory ambiguities to advance their political agenda. Indeed, the court's ruling today against Obama's aggressive EPA regulations may be just such a silver lining.

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For starters, on ObamaCare, unlike the 5-4 NFIB vs. Sebelius ruling in 2012, in which Roberts — in truly villainous fashion — cast the decisive vote in favor of the individual mandate, the 6-3 King ruling would have upheld the federal subsidies regardless of how the chief justice voted.

If the court's liberal bench had been left to its own devices to draft the ruling, it would have declared that the text of the law clearly authorized the subsidies and that the lawsuit challenging them was frivolous (as the liberal punditry has long been claiming). Justice Kennedy may have filed a concurring opinion trying to moderate the majority view, but it would have become a soon-forgotten footnote. Hence, it made some amount of sense for Roberts to hop on board the winning side and take over the steering wheel to avoid the worst damage for conservatives.

Roberts chided Congress for drafting an "inartful" law "behind closed doors" and escaping the "traditional legislative process." He acknowledged that the plaintiffs' interpretation that the subsidies are illegal is "the most natural reading of the pertinent statutory phrase." The reason he couldn't go along with this "natural reading," he said, was that it did not fit with the overall intention and structure of the law.

This was a bizarre argument for someone who is a textualist fan of judicial restraint. However, if Roberts had decided to throw in his support on the liberal side, he had to perform some hermeneutic jujitsu to arrive at the outcome it wanted. The more interesting thing about his ruling, then, is not the rationale he deployed but the one that he didn't.

Most people expected that if any conservative justice upheld the subsidies, it would be out of stare decisis considerations, or the conservative belief that cases should be settled based on standing precedent. And that would have meant handing Chevron deference to the Internal Revenue Service's stipulation that the authorization of federal subsides was a "permissible" — not likely or plausible, but permissible — interpretation of the statute.

However, Roberts rejected this argument and denied that the IRS could unilaterally interpret the statute any way it wanted in the absence of an explicit grant of authority by Congress. "It is especially unlikely that Congress would have delegated this decision to [an unelected body such as] the IRS, which has no expertise in crafting health insurance policy of this sort," he declared.

At first blush, Roberts' arrogation to the court, also an unelected body, the power to divine the true intention of a poorly written statute seems no advance for democracy. That, however, misreads the cleverness of the move whose aim seems to be to restore checks and balances.

Cato Institute's Andrew Grossman points out that thanks to Chevron deference, regulatory agencies no longer look for Congress' commands in statutes. Rather, they hunt for ambiguities that might allow them to escape a law's statutory confines. (And truth be told, Congress often deliberately writes vague statutes that avoid explicitly making unpopular choices and then winks and nods at regulatory agencies as they fill in the blanks.) "It (Chevron) has fundamentally changed the way that agencies go about their business of interpreting governing statutes," he notes.

Nowhere is this clearer than in the area of environmental law, points out Grossman. For example, the Environmental Protection Agency has scoured the Clean Air Act to find language that gives it the widest possible authority to regulate emissions without having to take any cost-benefit considerations into account.

But if Chevron deference no longer applies, and the EPA and its sister administrative agencies can no longer count on courts simply rubberstamping their decisions, they might well be forced to stick closer to the letter of the law. Even more importantly, Congress might be prodded to make that letter clearer — and own its political choices.

The Supreme Court's 5-4 ruling today in Michigan vs. EPA took the first step in applying this scaled-back understanding of Chevron deference. Writing for the majority, Justice Antonin Scalia lambasted the agency for ignoring the enormous costs its mercury emission standards imposed on coal-fired power plants. Even though Scalia himself has been somewhat less hostile to Chevron deference than Roberts, he noted that the EPA overstepped its "bounds of reasonable interpretation." Chevron, he scathingly observed, "does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not."

Justice Clarence Thomas went even further in his concurring opinion and declared that the Constitution hands courts, not administrative agencies, final interpretive power over laws. However, Chevron deference has undermined the courts' authority, raising "serious separation-of-powers questions," he said. The court cannot allow administrative agencies so much discretion that they effectively become legislators, he fumed.

In other words, confronted with certain defeat on ObamaCare, Roberts seems to have joined the enemy camp to shore up the battle for limited government principles on another front. That isn't ideal, but it's something.