(CNN) Chief Justice John Roberts twice saved Obamacare, and he appears ready to uphold it again. But Roberts is growing weary of it all.
Stop asking the justices to do the work of Congress. Stop pulling the court into the partisan fracas. And perhaps especially, stop forcing this chief justice to return to the days when, as Roberts said Tuesday , “we spent all that time talking about broccoli.”
At stake as the justices decide the fate of the Affordable Care Act is health care coverage for more than 20 million Americans and a signature policy of former President Barack Obama.
But this third challenge has become even more politically soaked than the 2012 and 2015 attempts because of President Donald Trump’s opposition, and the high court’s integrity is again on the line.
And just as Trump has suggested his appointees would back him in any litigation related to the November 3 election, he has often signaled he expects his appointees to side with him on administration initiatives such as ending Obamacare.
The Barrett appointment also has moved the court beyond a 5-4 divide to a new 6-3 conservative-liberal dominance. Roberts, who had been at the ideological center and regularly controlled cases with his fifth vote and regard for institutional interests, is likely to find it harder to steer a steady course.
But his role as chief justice still gives him a commanding presence and, as demonstrated in his questions to lawyers during the two-hour teleconference hearing, he continues to seek ways to minimize differences and — for now at least — avoid blockbuster rulings.
The cautious, strategic Roberts does not want the court to drive someone else’s policy agenda, for example, by killing Obamacare when Trump and congressional Republicans failed. Referring to members of Congress, Roberts said at one point on Tuesday: “I think, frankly, that they wanted the court to do that, but that’s not our job.”
In the weeks ahead, the Roberts Court will face other social policy dilemmas and disputes between the executive branch and Congress. Roberts is apt to stick to his low-profile strategy, especially with the presidential election still dominating the news and Trump, voted out of office, exacerbating tensions.
Roberts’ compromise in 2012 helped trigger the current dispute. The 2005 appointee of Republican President George W. Bush crafted a compromise with the court’s four liberals to uphold the ACA by construing its individual insurance mandate as part of Congress’ taxing power. Roberts separately agreed with the challengers at the time that the mandate violated Congress’ power to regulate commerce.
His tactics to preserve the law drew anger from conservatives who had fought Obamacare from its inception, but the moves went a long way toward shaping public perceptions of the chief justice as a moderate jurist. (His record on multiple other issues, regarding race and religion, for example, is solidly with the right-wing.)
The taxing-authority rationale was thrown in doubt when Congress in 2017 zeroed out the penalty for people who failed to obtain insurance. Texas and other Republican-led states sued the federal government, contending the individual insurance mandate could no longer be sustained as part of Congress’ taxing power.
Those longstanding ACA opponents, backed by the Trump administration, further contended the 2017 changed doomed the entire, multifaceted law, including its expansion of Medicaid for low-income people and its protections for people with preexisting conditions such as epilepsy, diabetes and cancer who might otherwise be denied insurance coverage.
When Congress enacted the so-called individual mandate, lawmakers deemed that requirement “essential” to overall insurance reform. The theory was that requiring younger, healthier people to buy insurance would to help spread the costs throughout the system.
Lawyers for California and other Democratic-led states, along with the Democratic-led US House of Representatives, defended the law’s constitutionality and argued that even if the zeroed-out insurance requirement has become invalid, the rest of the law should survive.
Roberts spurned arguments that would derail the entire law. He noted that the justices typically asked whether Congress would want the rest of a law to stand if a portion if found invalid. Read from source….