My colleague on these pages, Dave Catron, is persuaded that the Supreme Court’s decision to take certiorari on the Obamacare litigation (Burwell) means that one can expect the Court to undo the 2012 Sebelius decision which upheld the law. I can’t argue with Dave’s analysis. Certainly a close reading of the statute might persuade one that Obamacare is in trouble. But I don’t see it that way. One thing that’s clear from John Roberts’ decision in Sebelius is that the canons of statutory construction get thrown out the window when they get in the way of a politically minded judge.
So here’s an alternative view of the Court’s decision to hear the Burwell case. It takes only four judges to accept certiorari, and those four judges were likely the dissenters in Sebelius. It’s no secret that they were hopping mad at what was apparently Roberts’ last minute switch in that case. What better way to embarrass him, then, than to take cert. on Burwell and ask him to reconsider Obamacare. You see, according to the principle of statutory construction adopted by Roberts in Sebelius, a judge must be willing to perform summersaults to uphold a statue if there is any basis upon which to do so. Two lower Circuit Courts have found that such a basis does in fact exist. They interpreted Obamacare’s reference to “the state” to include the Federal government and not just state governments. In the context, that seems wrong, but it’s not altogether crazy. But the point is that Roberts cannot reject that argument and strike down Obamacare without revealing that his decision in Sebelius was an unprincipled act of a timorous politician.
But then perhaps that means that this time the Supreme Court will strike down Obamacare…
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