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 The conservative challengers in the case aim to persuade Roberts
and the other eight justices that the federal government has
overreached by providing tax subsidies to millions of people in 34
states that didn't create their own insurance exchanges.
Their argument will revolve around wording in the 2010 law that
insurance would be provided through exchanges “established by the
state,” which they argue rules out a federal role.
But in several key cases in recent years Roberts has voted in ways
that could favor the government's arguments. He has raised concerns
about upsetting the balance between federal and state law,
particularly when there is ambiguity in a law's wording. He has also
recognized the need to consider the overall context of a law, not
just an isolated phrase.
The government says the Obamacare law, read as a whole, shows the
subsidies were intended to be available nationwide.
Oral arguments are set for March 4, with the ruling expected by the
end of June. If the challengers win, millions of people in states
that do not have their own exchanges would lose the subsidies,
dealing a potentially crippling blow to Obamacare.
Appointed by Republican President George W. Bush in 2005, former
corporate lawyer Roberts joined the court's liberal wing in the 2012
case, which ruled Obamacare was constitutional.
Roberts may be the most likely of the five conservative justices to
side with the four liberals on the court, but Anthony Kennedy, often
the swing vote in close cases, could also be in play for the
government. It is, however, difficult to predict how any individual
justice will vote, particularly before hearing his or her questions
at oral arguments.
Although the recent cases testing the interpretation of statutes are
on a range of subjects, they give an insight into the legal
methodology that Roberts uses.
STATE RIGHTS
Last year, Roberts wrote an opinion in a criminal case in which he
cited states' rights in relation to Congress’ power to implement
treaties the U.S. government has signed. Lawyers for a Pennsylvania
woman accused of trying to poison her husband's lover said Congress
had overstepped in interpreting a treaty to cover crimes involving
household chemicals.
In throwing out the woman's federal conviction under a chemical
weapons law, Roberts signaled his concerns about infringing on the
rights of the states, which usually play the lead role in
prosecuting such crimes. If there is ambiguity in a statute, he
wrote, the court should attempt to interpret the law in a way that
does not harm the states.
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The government has cited that case in support of its Obamacare
defense, arguing that a ruling against the law would similarly have
an unintended negative impact on states. The healthcare law does not
explicitly say that subsidies would be denied to people in states
that did not set up exchanges.
Jonathan Adler, a professor at Case Western Reserve University
School of Law and one of the architects of the challengers' legal
theory, conceded in an interview that the states' rights question
could appeal to Roberts and Kennedy.
"I think that's a serious argument," he said.
The government is also highlighting a case from 2014. Then, Roberts
was in the majority in partially upholding the Obama
administration's first regulations to address climate change.
Roberts signed on to conservative colleague Antonin Scalia's
majority opinion, which stressed the notion that interpretation of
statutory language concerns not just the specific phrase at issue
but also the broader context. Along with Kennedy, Roberts has voted
most often since 2005 to support a government agency's
interpretation of the law, according to a 2014 survey by Jack
Beermann, a professor at Boston University School of Law.
Roberts has not always deferred to the government, even if warned of
major consequences. In January, he rejected the government's
interpretation of a whistleblower law despite what he conceded were
genuine security concerns about the disclosure of sensitive
information. He threw the ball back to the Republican-controlled
Congress, as he could do with Obamacare.
"Those concerns are legitimate. But they are concerns that must be
addressed by Congress or the president, rather than by this court,"
Roberts wrote.
(Reporting by Lawrence Hurley; editing by Stuart Grudgings)
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