Susan Sullivan Lagon | June 26, 2015
It’s been a very good week for the former constitutional law professor currently in the White House. The Supreme Court has upheld insurance subsidies for Americans in federal exchanges, rejecting the claim that “established by the states” meant the subsidy would be available only to those in states that had established health care exchanges under the Affordable Care Act. The 6:3 majority opinion authored by the Chief Justice Roberts in King v. Burwell chided Congress for its sloppiness in wording the law but ultimately concluded that in cases of ambiguity, deference should be paid to those administering the law—in other words, tie goes to the executive branch. Invoking the term “death spiral,” the Chief Justice said interpreting the statute literally would undermine the entire Obamacare system, which surely was not the intent of the Congress that passed it.
Writing for the three justices in the minority, Justice Scalia had some interesting words of his own accusing the majority of engaging in “somersaults of statutory interpretation” and interpretive “jiggery pokery,” suggesting that the law should henceforth be known as “SCOTUScare”.
On the heels of the Obamacare decision, the Supreme Court recognized the right of same-sex couples to marry. As has so often been the case, Justice Anthony Kennedy’s vote was decisive in another win for the White House in Obergefell v. Hodges. Fittingly, the case came down on June 26, the same day two other landmark gay rights cases were decided with majority opinions written by Justice Kennedy in 2003 and 2013. Lawrence v. Texas overturned sodomy laws in the 13 states that had enacted them, and U.S. v. Windsor overturned the Defense of Marriage Act (DOMA) that had limited the federal definition of marriage to heterosexual couples.
While the outcome of the 6:3 decision on the ACA was hard to predict, the Court recognizing the right of same-sex couples to marry nationwide was not. Justice Kennedy had clearer signaled his concerns about denying freedom to marry based on sexual orientation in his opinion in Windsor. DOMA’s central purpose, in the 5:4 majority’s view, was to” identify a subset of state-sanctioned marriages and make them unequal.” Kennedy went on to note that DOMA “demeans the couple” whose choices the Constitution protects and “the State has sought to dignify” and “humiliates tens of thousands of children now being raised by same-sex couples.” It was only a matter of time before the Supreme Court would revisit the issue and use the same rationale.
Earlier this month the judicial branch handed the executive branch another major victory over the legislative branch. A 6:3 majority in Zivitovsky v. Kerry found that Congress’ attempt to allow Americans born in Jerusalem to list “Jerusalem, Israel” on their passports was a clear violation of separation of powers. Article II confers the power to “receive ambassadors”—meaning recognize other countries—on the president alone. The State Department has long refused to list “Jerusalem, Israel” on passports because presidents have not wanted to take sides in the long-standing Israeli-Palestinian conflict. Both parties claim Jerusalem as their own.
A major case on EPA regulations is still to come, but for an administration that was spanked on recess appointments (NFIB v. Sebelius) and recent Circuit Court rulings prohibiting Obama’s executive actions on immigration, this week must come as a relief.