Roberts draws wrath of right in saving ObamaCare a second time

Roberts draws wrath of right in saving ObamaCare a second time
© Greg Nash

Conservative frustration with Chief Justice John Roberts is bursting into public view after he saved ObamaCare for the second time in three years.

In the 6-3 decision written by Roberts, the court delivered a decisive victory to President Obama by ruling that the administration could legally hand out healthcare subsidies in all 50 states.

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The King v. Burwell decision sent painful flashbacks to conservatives across Capitol Hill, who say Roberts again betrayed the party by cementing a key component of President Obama’s legacy.

“I am absolutely flabbergasted, dumbfounded, amazed that he wrote such a blatantly political opinion,” Michael Cannon, one of the chief architects of the case, said in an interview.  

“When it comes to the Affordable Care Act, he’s allowed himself to be intimidated over and over again into rewriting it,” Cannon added.

“There’s probably nothing that discourages me more than that,” Rep. Trent FranksHarold (Trent) Trent FranksHouse forges ahead with Dec. 22 spending bill Conservatives fear end-of-year ‘Christmas tree’ spending bill Adoption tax credit restored after conservative backlash MORE (R-Ariz.) said of Roberts’ decision to save the healthcare law.

King v. Burwell had been seen as the party’s final chance to dismantle the healthcare law while Obama remained in office. And after Roberts cast the deciding vote to uphold the law in 2012, conservatives said they were counting on him to rule in their favor this time.

Instead, Roberts – who was opposed by Obama during his confirmation hearing a decade ago – ruled that Congress could not have possibly intended to prevent some states from receiving healthcare subsidies because doing so would have sent the insurance market into a death spiral.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote.

The chief justice also took a less-than-subtle jab at Scalia by using words from his previous dissent in an ObamaCare case in 2012.

In return, Scalia made an apparent reference to Roberts while delivering the dissent for King v. Burwell. After repeatedly condemning the court for attempting to “rewrite” the Affordable Care Act, Scalia says that the law should be called “SCOTUScare.”

Unlike 2012, the chief justice did not cast the deciding vote, because in this case, he was joined by Kennedy. Still, Georgetown law professor David Super said there is plenty in Thursday’s decision to roil Republicans.

“I can see them being more upset about this decision than the last time,” he said. “This decision there’s pretty much nothing to appeal to conservatives at all.”

When Roberts ruled in National Federation of Independent Business v. Sebelius, the court upheld the vast majority of the law but did decide to strike down a provision that would have required states to expand Medicaid insurance.

But in King v. Burwell, he offers no concessions to congressional Republicans.

In Roberts’s 21-page opinion, he cites the “death spiral” multiple times, indicating that he had been paying attention to warnings from the White House.

Breaking from conservative justices Antonin Scalia, Samuel Alito and Clarence Thomas, Roberts ruled that justices should not restrict themselves to a plain text reading of the law — especially when doing so puts the court into the role of making policy.

“In a democracy, the power to make law rests with those chosen by the people,” Roberts writes in the closing paragraphs of his opinion. “A fair reading of the legislation demands a fair understanding of the legislative plan.”

The wrath of conservatives against the court became clear in the immediate aftermath of the decision.

Several lawmakers lashed out on the Senate floor, such as Sen. Ted Cruz (R-Texas), who lambasted the justices as “robed Houdinis.” Rep. Joe Pitts (R-Pa.), whose subcommittee has jurisdiction over ObamaCare, said the justices “deserve an Olympic medal for the legal gymnastics.”

Another Republican lawmaker, Rep. Brian Babin (R-Texas), proposed a bill that would require the justices to purchase ObamaCare so that they can “see firsthand what the American people are forced to live with.”

Conservative radio host Rush Limbaugh floated a theory that Roberts had been paid off by those in the healthcare industry that stand to benefit from ObamaCare, while a commentator on The Blaze wondered whether he had been blackmailed.

Meanwhile, Franks, who had supported Roberts during his confirmation hearing, looked to offer an explanation for the decision to uphold the law.

“I think Justice Roberts takes into consideration the aftermath of his decisions, rather than confining his decisions to strictly the constitutional questions,” he said, without specifically criticizing the chief justice.

“I think it’s a very important thing for Supreme Court members to recognize that their greatest loyalty is to the constitution.“

Cannon, who helped shape the King v. Burwell lawsuit, also said Roberts appeared highly conscious of the impact of the ruling, which he argued should not have been the justices’ concern.

“His ruling is drenched in talk of the consequences of his ruling,” Cannon said.

Other Republicans pointed to their party’s process for selecting justices, which they said does not always put emphasis on promises to uphold conservative values.

“Republicans don’t have a good track record of appointing solid justices that believe in Republican principles,” said Rep. Lynn Westmoreland (R-Georgia). “If you look at Democratic appointees, they stick tight.”

Rep. Michael BurgessMichael Clifton BurgessHarvey response puts squeeze on GOP Medicaid efficiency is needed now, more than ever In the politics of healthcare reform, past is prologue MORE (R-Texas) said the Republican appointee process means “we sometimes get justices who surprise us with their opinions and ruling.”

“I do think, and I have heard Scalia say in the past, that we need to be as smart as Democrats when nominating court justices,” Burgess said. “Maybe it’s time for us to be just as rigid as Democratic appointees.”

Still, some Republicans are quietly thinking that Roberts may have been doing the party a favor.

If the Obama administration had lost in court, Republicans would have faced the nearly impossible task of uniting the party around a single healthcare plan — something that has eluded the party since the law’s passage.

Nearly all agreed that it could have been politically disastrous, particularly ahead of the 2016 election.

“He is anything but stupid,” one GOP lawmaker said of Roberts.

In the aftermath of the ruling, one lawmaker, Sen. Orrin Hatch (R-Utah), offered glowing praise for Roberts even as he slammed the decision as a whole.

“The chief justice is a remarkable judge. He's a tremendous human being. I have a tremendous confidence in him, and I believe in him," Hatch said from the Senate floor, adding that he believed Roberts “used his talents to uphold ObamaCare.”