Conservatives were totally flummoxed by John Roberts' apostasy in upholding Obamacare's subsidies through federal exchanges last week.
For the second time, it seemed, he had stepped in and saved the law. Conservative columnist George Will accused
White House
Roberts of assuming the role of a legislator, thereby "damaging all institutions, not least his court." Likewise, John Podhoretz called Roberts' logic "twisted" and "ludicrous." Jonathan Adler, the law professor who was the legal brains behind the lawsuit, observed that the "umpire has decided its okay to pinch hit to ensure the right ream wins." And yours truly, in a fit of pique, declared that on ObamaCare, "Scotus Fuctus"!
Some folks on Twitter even wondered if the Obama administration had Hastret-style poop on him.
But I note in my column this morning that perhaps there was a broader purpose behind Roberts' apostasy. He yanked the opinion from the hands of the liberal bench and used it to start reining in the "soft despotism" of the administrative state. His Obamacare ruling refused to rely on Chevron deference to uphold the law. This deference gives executive bureaucracies wide latitude to exploit statutory ambiguities to advance their political agenda without any pushback from the courts. He denied that the IRS had any authority or expertise to interpret the law as it saw fit without second-guessing by the courts.
And this morning the Supreme Court's 5-4 ruling in Michigan vs. EPA started applying the new Chevron oversight. I note:
Writing for the majority, Justice Antonin Scalia lambasted the agency for ignoring the enormous costs its mercury emission standards imposed on coal-fired power plants. Even though Scalia himself has been somewhat less hostile to Chevron deference than Roberts, he noted that the EPA overstepped its "bounds of reasonable interpretation." Chevron, he scathingly observed, "does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not."
Roberts might have retreated on Obamacare to muster ammunition to launch a war for limited government on other fronts.
Go here to view the whole column.
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