JONATHAN ADLER: In King v. Burwell, Chief Justice Roberts rewrites the PPACA in order to save it (again)

Today’s decision in King v. Burwell is notable in many respects.  It is a significant legal victory for the Obama Administration, a victory for purposivist statutory interpretation, a loss for textualism, and a loss for an expansive Chevron doctrine.  In these latter respects, the decision is something of a double-loss for Justice Scalia (which may explain the last line of his opinion).  King also means that, in many respects, the PPACA is now the law that Chief Justice Roberts wrote as here, as in NFIB v. Sebelius, the Chief Justice has decided it is the Court’s job to determine what the statute means — even if this requires ignoring or rewriting text — if such is necessary in order to save it.  The umpire has decided it’s okay to pinch hit to ensure the right team wins. . . .

Just as the Chief Justice rewrote the individual mandate into a tax, and rewrote the Medicaid expansion to sever it from traditional Medicaid, the Chief Justice has rewritten Section 36B of the Internal Revenue Code to excise the repeated reference to exchanges “established by the State.”  Justice Scalia, in dissent, said Obamacare should now be known SCOTUSCare. Whatever we call it, the PPACA is now, in many respects, the law that Chief Justice John Roberts wrote.

I know what Jonathan is going through today having to write about this case he did so much to design and advocate for the past couple years. I well remember what a kick-in-the-gut this feels like.