Will Roberts Kick the Can to a Republican President?

So Jeffrey Toobin wrote his column on yesterday’s oral arguments in King v. Burwell, and here’s the most interesting speculation yet about the Chief Justice’s unusual silence–and the one time he interrupted it:

Roberts’s one question may turn out to be extremely important…..

Anthony Kennedy had asked about “Chevron deference,” a doctrine of law that describes how much leeway the executive branch should have in interpreting laws. Verrilli, not surprisingly, said that the Chevron doctrine gave the Obama Administration more than adequate permission to read the law to allow subsidies on the federal exchange. “If you’re right about Chevron,” Roberts said, at long last, “that would indicate that a subsequent Administration could change that interpretation?” Perhaps it could, Verrilli conceded.

The question suggests a route out of the case for Roberts—and the potential for a victory for the Obama Administration. Roberts came of age as a young lawyer in the Reagan Administration, and there he developed a keen appreciation for the breadth of executive power under the Constitution. To limit the Obama Administration in this case would be to threaten the power of all Presidents, which Roberts may be loath to do. But he could vote to uphold Obama’s action in this case with a reminder that a new election is fast approaching, and Obamacare is sure to be a major point of contention between the parties. A decision in favor of Obama here could be a statement that a new President could undo the current President’s interpretation of Obamacare as soon as he (or she) took office in 2017. In other words, the future of Obamacare should be up to the voters, not the justices.

If Toobin’s right, it will be interesting to see if any conservatives buy the argument and restrain their fury at Roberts for saving Obamacare twice. It’s an issue that transcends this case, of course: all the supposedly tyrannical powers Obama has assumed in the face of congressional obstruction are fully available to future Republican presidents. Leaving aside the handful of conservatives whose objections to “executive overreach” are not limited to its application by the wrong “team,” you’d think they’d have to privately admit Roberts has a point.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.