by Simon Lazarus, Senior Counsel, Constitutional Accountability Center
*This post originally appeared on Balkinization.
Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it. In King v. Burwell, Roberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges. In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings. But the celebration must be tempered. This big win is not the President’s doing, nor that of the Executive Branch he controls. Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion. How often will these stars align again?
That question is not academic. King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives. Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation. A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.
Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.
How will conservative Supreme Court justices and lower court judges respond to further attempts by conservative advocates to derail Obama’s legacy? Clues to that question may be found in the King v. Burwell decision itself. Roberts’ opinion, for himself, Kennedy, and the four liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – seemed to alter the rules of Chevron deference for interpreting high-impact laws like the ACA. Roberts asserted that the Judiciary, not the Executive Branch, will get the decisive say on questions of “deep economic and political significance . . . central to . . . statutory scheme[s].” Given that the Court’s 5-person conservative bloc includes four of the most conservative justices in the past 70 years , this self-empowerment might portend ominous consequences for progressive programs. Yet the Chief Justice sketched out how he anticipates the Judiciary will operate in the future; and his instructions, if followed, could mitigate these concerns.