Washington Post columnist E.J. Dionne Jr. claims that last week’s D.C. Circuit decision striking down Obamacare subsidies for individuals enrolled in federally-run health care exchanges was “extreme judicial activism.”
That’s a loaded term too often used by those who don’t like the outcome of a particular case. But judicial activism is not simply in the eye of the beholder—it reflects the idea that judges have a role in our constitutional system, and it is not to act like politicians by another name. Judicial activism occurs when a judge fails to faithfully interpret the laws by, for example, elevating policy considerations above the requirements of law, discovering “new” rights not found in the text, or bending the text to comport with a judge’s own sensibilities.
In a column published last week, Dionne says Judge Thomas B. Griffith, who authored the D.C. Circuit opinion in Halbig v. Burwell, “invent[ed] the idea that Congress may have intended to deny subsidies to people in states that didn’t set up their own exchanges as an incentive for those states to do so.” This misses the mark, for two reasons.
First, Griffith didn’t invent the concept of “anti-commandeering.” The Tenth Amendment of the Constitution protects the states from being conscripted into doing the federal government’s work. The Supreme Court has long recognized this “anti-commandeering” principle as part of the dual sovereignty of the federal and state governments, most recently in the 2012 challenge to Obamacare’s Medicaid expansion. As the Supreme Court noted in New York v. United States(1992), “[T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” Thus, Congress may encourage – but not force – the states to implement certain policies. The exchange subsidies are a prime example of Congress using a carrot-and-stick approach.
Second, Congress passed a law that unambiguously limits subsidies to “insurance purchased on Exchanges established by the State.” It may be unfortunate for supporters of the law and those purchasing health insurance through a federally-run exchange, but the fact remains that the “Text is King” in statutory interpretation, as Supreme Court Justice Antonin Scalia has said. Though members of Congress may be feeling buyer’s remorse since 36 states chose not to open their own exchanges, that doesn’t change the plain language of the statute.
Griffith pointed out that “there must be evidence that Congress meant something other than what it literally said” in order for the court to depart from a statute’s plain meaning. He continued:
The point is that we don’t know, and in asking us to ignore the best evidence of Congress’s intent—the text of [the statute]—in favor of assumptions about the risks that Congress would or would not tolerate—assumptions doubtlessly influenced by hindsight—the government and dissent in effect urge us to substitute our judgment for Congress’s. We refuse….The role of the court is to apply the statute as it is written—even if we think some other approach might accord with good policy.
That doesn’t exactly read like a conservative judge’s attempt to “defy the will of Congress” and “win ideological victories that elude [his] side in the elected branches of our government.” Dionne may want to reconsider who is engaged in “anti-democratic sabotage.”