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Jacob Sullum
Jacob Sullum
24 Jun 2015
Massacres and Magical Thinking: The Urge To 'Do Something' After the Charleston Church Attack Inspires Half-Baked Proposals

"If Congress had passed some common-sense gun safety reforms after Newtown," President Obama said on Friday, "… Read More.

17 Jun 2015
The Clintons' Disdain for the Second Amendment: 'You Can't Have a Bunch of People Walking Around With Guns'

Arkansas has pretty permissive gun laws. It does not require handgun owners to obtain licenses, does not ban so-… Read More.

10 Jun 2015
The Supreme Court Misses an Opportunity to Defend the 2nd Amendment

This week, the Supreme Court passed up an opportunity to get the government out of the bedroom. Counterintuitively,… Read More.

Deferring to Congress, Roberts Takes Over Its Job: The Chief Justice Saves Obamacare by Rewriting the Law


Three years ago, Chief Justice John Roberts rewrote the Patient Protection and Affordable Care Act, a.k.a. Obamacare, to save a key provision that he believed would otherwise be unconstitutional. Last week he did it again, this time to make the law work better.

In both cases, Roberts claimed he was deferring to the legislature, when he was doing just the opposite: applying the law he thought Congress should have enacted instead of the one it actually passed. Such arrogance disguised as modesty undermines the rule of law while encouraging legislative laziness.

The 2012 case involved Obamacare's "penalty" for anyone who "fails to comply" with the "requirement to maintain minimum essential coverage," which Roberts reframed as a "tax" that hinges on whether you follow the government's guidelines regarding health insurance. He thus transformed a mandate into a suggestion (albeit one you can ignore only at the cost of higher taxes) to avoid further expansion of the power to regulate interstate commerce, which the Supreme Court had already stretched beyond recognition.

There was another option, of course. Roberts could have joined four of his colleagues in concluding that the individual health insurance mandate exceeded the powers the Constitution gives the federal government. But such a ruling would have eliminated a crucial feature of Obamacare, and Roberts was determined not to do that.

For similar reasons, Roberts did not want to conclude that federal subsidies are available only to people who buy health insurance through "an exchange established by the state," which is what the law says. Writing for the majority in last week's decision, Roberts worries that such a ruling "would destabilize the individual insurance market in any state with a federal exchange, and likely create the very 'death spirals' that Congress designed the act to avoid."

Roberts therefore fixed the statute by excising those three inconvenient words — "established by the state" — from Section 36B of the law.

Although Roberts claims the revision was necessary to resolve an "ambiguity," he concedes that the challengers' "arguments about the plain meaning of Section 36B are strong." How could he not, since the plaintiffs argued that the law means what it says, while Roberts decided it means the opposite?

As Justice Antonin Scalia pointed out in a dissent joined by Clarence Thomas and Samuel Alito, fixing statutes is not the Supreme Court's job, which is limited to saying what the law is. That responsibility includes pointing out when a statute conflicts with the Constitution, but it does not include editing a statute so that it better accomplishes what the justices take to be the goals of Congress.

"The court forgets that ours is a government of laws and not of men," Scalia writes. "That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers."

By trying to improve on the legislature's work, the court not only exceeds its proper function; it discourages Congress from performing its function properly. That is the last thing we need in a country where legislators routinely vote for bills they have not read, let alone understood.

Roberts notes that Congress passed the 900-page Affordable Care Act "using a complicated budgetary procedure known as 'reconciliation,' which limited opportunities for debate and amendment." He observes that the law "contains more than a few examples of inartful drafting" and "does not reflect the type of care and deliberation that one might expect of such significant legislation."

The solution to such congressional carelessness is not judicial intervention, but legislative diligence. If Congress errs, Congress should try again, and maybe it will do a better job.

Like the overprotective parent of a student whose mediocre term paper has been returned full of red ink, Roberts wants to take over the project based on his own (possibly mistaken) understanding of the assignment. But if Congress does not correct its own mistakes, how will it ever learn?

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at



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