Donald Dossier: All Roads Lead to Roberts - OZY | A Modern Media Company

Donald Dossier: All Roads Lead to Roberts

Chief Justice John Roberts, a conservative institutionalist, is about as different from President Donald Trump as it gets.
SourceGetty Images/Composite by Ned Colin

Donald Dossier: All Roads Lead to Roberts

By Ned Colin and Daniel Malloy


The Supreme Court’s chief justice will likely decide the fate of Obamacare … and potentially the Trump presidency.

By Ned Colin and Daniel Malloy

The Patient Protection and Affordable Care Act has been declared dead too many times to count, from the torturous process to make it a law in the first place (shoutout to “deem and pass”) to the meltdown when sign-ups began to Sen. John McCain’s dramatic thumbs-down on repeal in 2017.

But the signature nail-biter for the law known as Obamacare came in late June 2012, when Chief Justice John Roberts led a 5-4 majority that surprisingly upheld the law’s requirement that all individuals buy health insurance as constitutional, under Congress’ taxing authority.

It looks like Roberts will have the law in his hands once again during the hot summer of a presidential reelection campaign. Book your First Street rallies now for 2020: Obamacare is almost certain to head back to SCOTUS for a pins-and-needles moment with the nation’s health insurance system and, quite possibly, the presidential election on the line.

Donald Trump would much rather talk about immigration than health care.

This comes from reading the tea leaves in the 5th Circuit Court of Appeals this past week, where two Republican-appointed judges asked questions indicating they were sympathetic with the argument of conservative groups that Obamacare is invalid because Congress reduced the individual insurance mandate penalty to $0 in a landmark tax reform law.

The argument is that Roberts upheld Obamacare because it was a tax, but when the tax goes away, the law’s legality crumbles like a house built of tongue depressors. Never mind that Congress had a chance to repeal the law and didn’t. The Trump administration is siding with the teardown effort, but it is not really in its political interest to do so.

Donald Trump would much rather talk about immigration than health care. His campaign pledge of “something terrific” to replace Obamacare fell into a congressional morass during his first year on the job. Since then, he’s mostly dropped the subject — except for an odd vow to revive a replacement health law a couple of months ago, a pledge farmed out to a group of senators never to be heard from again.


Instead, this weekend we’ve got mass Immigration and Customs Enforcement deportation raids. On Monday, the president of Guatemala, Jimmy Morales, will be at the White House, and Trump will try to get him to agree to be a safe haven for asylum-seekers from Honduras and El Salvador. Now, those families fleeing violence travel all the way to the United States, where tales of children detained in horrific conditions in U.S. Border Patrol shelters continue to shock the American conscience.

Trump is going to run again on immigration, but he needs to show his base that border crossings are falling and deportations are rising. He did his best to whip up a frenzy over immigration in the closing weeks of the 2018 midterms — threatening to shut down the Mexican border, hyping a “caravan” of migrants from Honduras. It didn’t work on the whole, but it probably helped inflame partisans to turn out for narrow Republican wins in states like Georgia and Texas.

He’s also trying to squeeze noncitizens who made it through. Last week saw Trump suddenly fold in his fight to get a question onto the 2020 census asking whether or not the respondent is a U.S. citizen after a slapback by Roberts left him fuming. But the fold came with an apparent pivot to a new legal strategy arguing that congressional and legislative districts should be drawn based on citizens rather than the total population, thus sapping political power from immigrant communities.

That push too would likely end up on Roberts’ desk. After he sided with conservatives this year in ruling that federal courts can’t police partisan gerrymandering and back in 2012 cast aside much of the Voting Rights Act as outdated, Roberts could be amenable to the idea of including only citizens in maps.

On health care, it’s hard to imagine Roberts changing his mind after backing Obamacare before, particularly given the chaos it would cause to dismantle the insurance exchanges, Medicaid expansion, protections for preexisting conditions and other elements of the sprawling law. It would be political chaos for Republicans too, who have long pledged a different path on health care without agreeing on the details. Still, predicting Supreme Court outcomes is notoriously tough.

Roberts, a conservative institutionalist, is about as different from Trump as it gets. But he too has the capacity to surprise.

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