Last week, the United States Supreme Court once again opted not to rule a key provision of the Affordable Care Act unconstitutional. The case at issue, King v. Burwell, was technically not a challenge to the Affordable Care Act itself but rather the IRS’s implementation of the Act.

“In a democracy,” Chief Justice Roberts wrote for the majority, “the power to make the law rests with those chosen by the people. Our role is more confined—“to say the law is.”

Such a statement is quite ironic given that the decision takes a statutory phrase and then contorts it to say the exact opposite of its natural meaning. While the policy implications of the Supreme Court’s upholding of the ACA will likely grab most of the headlines in the coming weeks, the Court’s complete abdication to the Executive on matters of statutory interpretation could shake the very foundations of our democracy for decades to come.

Administrative agencies like the Internal Revenue Service are outgrowths of the Executive Branch, which is charged with enforcing our nation’s laws. Therefore, any power given to such an agency is by implication given to the Executive. Last week’s decision granted administrative agencies a powerful new tool for reaching far beyond their congressional mandate. In doing so, the Court has paved the way for the Executive Branch to overreach even further beyond its congressional mandate by appealing to the principles enunciated by the Roberts court.

The fundamental question at issue in King v. Burwell was whether the IRS had exceeded its congressional mandate. The Affordable Care Act (ACA) sets up a scheme through which individuals purchase health insurance through government-run “Exchanges.” The ACA, as written, authorizes the IRS to provide tax subsidies only to those who purchase their healthcare though an Exchange “established by the State.” However, the IRS opted to provide subsidies to Americans who purchased their health insurance through Exchanges established by both the state and the federal government.

Chief Justice Roberts admits outright that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Justice Scalia had a biting response to this statement:

The Court claims that “the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters. It is a tool for understanding the terms of the law, not an excuse for rewriting them.

The saddest part about Justice Scalia’s dissent is that, as of the Court’s opinion this morning, he is wrong. He is not wrong because he is articulating the principles of statutory construction incorrectly. He is now wrong because the Supreme Court is not simply an interpreter of law – it is also itself a creator of law.

Generally, regulations are evaluated under the Chevron test to determine whether they exceed the mandate of Congress. That test asks whether to grant deference to a government agency’s interpretation of a statute that it administers.

However, the Court opted not to use the Chevron framework. Its stated reason for doing so was because this is an “extraordinary” case that affects a question of deep “economic and political significant” – the question of whether subsidies are available on Federal Exchanges. Under this rationale, the Court stretched the amount of deference due to administrative agencies to the point where the Internal Revenue Service now has the “discretion” to take an action that is the exact opposite of what the statute explicitly states.

In order to determine whether such deference is warranted under Chevron, the Court is first supposed to ask whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter. However, if Congress has not directly addressed the question at issue, then the Court should simply determine “whether the agency’s answer is based on a permissible construction of the statute.”

It would seem that the Court, before ever taking up the case, decided that it would find a way to uphold the Affordable Care Act. However, in doing so it has handed administrative agencies, and therefore the Executive, a powerful new tool. For years to come, executive-level agencies will argue in federal courts throughout the nation that they have discretion to do as they please, all due to the fact that their actions affect questions of “economic and political significance.” This Court has left its subordinate tribunals with the task of determining when an issue of such “significance” that executive agencies should have unfettered discretion to ignore the limitations of Congress and instead unilaterally carry out the will of the Executive.

The Roberts court today secured its legacy as a Court that twisted the law in order to serve a predetermined purpose of upholding the political class’s cause of choice. If it was not bad enough that this legacy in the short term leaves the American people with a healthcare system that focuses on “coverage” and “insurance” rather than actual access to healthcare and cost controlling measures, in the long term the Court’s jurisprudence will surely be cited for years to come as the tool of choice for the Executive Branch to expand its power far beyond its congressional mandate.

Elliot Engstrom is an attorney with the Civitas Institute Center for Law and Freedom,

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3 replies
  1. Barb Zack
    Barb Zack says:

    Excellent analysis. The Court must uphold the Constitution, not rule via feelings or pop culture. It appears the American People can no longer depend on any branch of government to represent us. The only branch of government NOT doing any legislating right now is the only branch of government Constitutionally authorized to do so, our Congress.. they stand by useless and helpless, spineless. The only thing they’ve done lately is find the first camera and microphone they can to pontificate and express “outrage” at what is happening..

    Even if we elect every Conservative out there, it may not be enough to combat the liberal strangle hold that has taken over our Nation.

  2. Ron
    Ron says:

    Mr. Engstrom, assuming Republicans control the executive and legislative chambers after the 2016 election, how can they put a stop to the administrative agencies’ ability to use this new tool?

  3. Ralph Howarth
    Ralph Howarth says:

    What is disturbing here is how the courts pay no regard to the actual Foundational Sources the Foundational Documents are based on. One source namely is Sir William Blackstone’s Commentaries on the Laws of England. Another primary source is the Emmerich de Vattel Law of Nations. (If you were to look at the constitution’s A1 S8 C10 use of the term “Law of Nations” and wonder if Vattel’s book and the constitution’s use of the term had any correlation, then you would be correct.) I posit that the courts pay no regard because the judges simply have not even read the Founding Sources.

    The Chevron test is superfluous because the constitution is a Common Law basis document and there already is judicial procedure spelled out in that law on how to interpret law. And this information that ought to be a “cheat sheet” for any judge to use is so hard to find that no Google search jumps right to it. So I made one here:

    When the Founders debated drafting and ratifying the constitution, these are some of the sources they would pull of the shelf, read out loud relevant passages, and put back on the shelf to determine the meaning of the legal terms used in the constitution text. If the Founder’s were using these proverbial legal dictionaries of the day, how come we are not using them in these present times to determine what is or what is not constitutional? These rules of interpretation are so integral to American Law that to do otherwise actually requires a constitutional amendment. This is where terms like Due Process, Equal Protection, Ex-Post Facto, Habeas Corpus, Letter of Marque and Reprisal, and Bill of Attainder come from. These terms are non-negotiable constitution wise, and so are the rules of interpreting law.


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