by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
As Locker Room readers are no doubt well aware, two weeks ago Chief Justice Roberts delivered the majority opinion in King v. Burwell. He held that, in the context of the Affordable Care Act, the phrase, “An Exchange established by the State,” should be interpreted to mean, “An Exchange established by the State or by the Federal Government.”
While some have complained that the King v. Burwell decision is “unprincipled,” constitutional law expert John O. McGinnis says:
This charge is unfair. It is a principled decision, implementing a well-established, if wrong-headed, theory of statutory interpretation, giving greater weight to what the Court sees as the overriding purpose of legislation rather than its text.
While this explanation for the Chief Justice’s reasoning in King v. Burwell seems plausible enough, it is hard to reconcile with his dissent the following week in Arizona State Legislature v. Arizona Independent Redistricting Commission.
In 2000 a successful ballot initiative took redistricting power away from the Arizona Legislature and gave it to the AIRC. The legislature responded by raising an objection based on Article I, Section 4 of the US Constitution (the “Elections Clause“) which states:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.
Writing for the majority, Justice Ginsburg upheld the AIRC’s redistricting power. She noted that:
The dominant purpose of the Elections Clause…was to empower Congress to override state election rules, not to restrict the way States enact legislation.
And she held that, in the context of the Elections Clause, the phrase, “By the Legislature,” should be interpreted to mean, “By the legislature or by the people.”
Surprisingly — given his supposed commitment to the principle that the overriding purpose of legislation should be given greater weight than its text — Chief Justice Roberts rejected this reasoning. He complained that the majority’s opinion was “based largely on its understanding of the ‘history and purpose’ of the Elections Clause [and] lacks any basis in the text of the Constitution or any other relevant legal source.” In his dissent, he provides a detailed analysis of the Constitutional text and the relevant case law to support his conclusion that:
The people of Arizona have concerns about the process of congressional redistricting in their State. For better or worse, the Elections Clause of the Constitution does not allow them to address those concerns by displacing their legislature. But it does allow them to seek relief from Congress, which can make or alter the regulations prescribed by the legislature. And the Constitution gives them another means of change…. Indeed, several constitutional amendments over the past century have involved modifications of the electoral process. Unfortunately, today’s decision will only discourage this democratic method of change. Why go through the hassle of writing a new provision into the Constitution when it is so much easier to write an old one out?
It’s certainly a persuasive argument; why didn’t he use it in King v. Burwell? He could have said:
The Administration and its agencies have concerns about the process of implementing the Affordable Care Act in states that have not established insurance exchanges. For better or worse, the separation of powers imposed by the Constitution does not allow them to address those concerns by displacing the law as it is written. But it does allow them to seek relief from Congress, which can make or alter the regulations it has prescribed. Altering them by administrative fiat or judicial decree will only discourage this democratic method of change. Why go through the hassle of writing a new provision into the Act when it is so much easier to write an old one out?