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The Affordable Care Act, 5-4 and the Legacy of the Roberts Court: Part II

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Peter Lyn René
October 1, 2020

During President Barack Obama’s presidency, the duties and functions of the three branches of government became so blurred and skewed that it is difficult to determine, “Who’s on first.” The Supreme Court, for example, has consistently accepted difficult, controversial cases to review: cases such as the continuing challenge to the Affordable Care Act (ACA) by which one line in the law contains ambiguous language—something that could have easily been corrected by a simple act of Congress.

On November 21, 2014, The Speaker of the House John Boehner sued the executive branch accusing the President of failing to perform his constitutional duties. Filed in the U.S. Federal District Court in Washington, the lawsuit challenged the Obama administration’s decision to unilaterally delay implementation of the employer mandate in the 2010 law, along with cost-sharing subsidies paid to insurance companies that House Republicans allege were not appropriated by Congress. To date the ACA has survived all challenges; however, the ACA will be challenged in the Supreme Court after the November 2020 election. At stake will be the fate of 20 million consumers covered under the ACA. In Part I of this series, I discuss the 5-4 decision by the Supreme Court, which upheld the ACA, with the Chief Justice John Roberts delivering the decision.

High profile and landmark cases continue to be decided 5-4, in the Court’s 2019-2020 term; in this term, 64 cases were decided: thirteen were 5-4 or roughly four percent of the total cases decided by the Court. Though the four percent seems relatively small, these were the major, landmark cases that were decided by a divided Court. Notable 5-4 decisions of the 2019-2020 term include:

  • In South Bay United Pentecostal Church v. Newsom, a split U.S. Supreme Court (5-4) Friday night May 30, 2020, upheld California’s limits on attendance at houses of worship during the pandemic, rejecting a First Amendment challenge by a San Diego County church.
  • In Department of Homeland Security v. Regents of the University of California, decided on June 18, 2020, the court said in a 5-4 ruling written by Chief Justice Roberts that while the president had the legal authority to revoke the Deferred Action for Childhood Arrivals, or DACA, his administration failed to give a reasoned explanation for ending a policy that encouraged about 700,000 immigrants to register with the government to obtain work permits and avoid deportation.
  • Espinoza v. Montana Department of Revenue, decided on June 30, 2020, answered the following: May a state exclude church schools from a state-sponsored tuition aid program that supports students in other private schools, or does that exclusion amount to unconstitutional discrimination against religion? That is unconstitutional discrimination based on religion, the court said in a 5-4 ruling.
  • Does the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violate the separation of powers principle? Yes, the court said in a 5-4 ruling in Seila Law LLC v. Consumer Financial Protection Bureau, decided on June 29, 2020. Chief Justice Roberts said that putting a single director in charge of the agency and giving her a fixed term violates the president’s executive authority.
  • Does Oklahoma have the authority to prosecute serious crimes committed by Native Americans on land that was part of a historic reservation? No, the court said in a 5-4 ruling in McGirt vs. Oklahoma. Decided on July 9, 2020, the Court said land reserved for the Creek Nation since the 19th century remains Indian country under the Major Crimes Act (MCA), which grants the federal government exclusive jurisdiction to try certain major crimes committed by enrolled members of a tribe on that land.

In each 2019-2020 5-4 decision, except for McGirt v. Oklahoma, Chief Justice Roberts was in the majority. His decisions appear to support his concern that the Court appear legitimate to observers and the general public. For example, in Department of Homeland Security v. Regents of the University of California, Chief Justice Roberts authored the opinion citing the Trump administration did not provide a reasonable explanation for implementing a procedure requiring immigrants to register with the government to receive work permits in lieu of being deported. A procedure champion by President Trump and other conservatives, conclusions could possibly made that the Chief Justice, in an attempt to sway the Court away from its perceived “conservative” lean, joined the majority to again, lead credibility to the Court’s independence.

The Supreme Court, for example, should have refused to hear the latest challenge to the ACA; rather it should have passed on the case and instructed the legislative and executive branch to work together to clear up the ambiguous language one line, “Established by the state,” which means that healthcare exchanges were established by the states to assist in providing the healthcare market. The simple issue is that for states to not have an exchange, the federal government assisted in creating an exchange for them, and this is the basis of the latest challenge to the ACA.


Author: Peter Lyn René is a Visiting Professor at the Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University. He is Chairman, and CEO of The Caribbean American Heritage Foundation of Texas, a 501(c)(3) non-profit organization. He has an extensive background in international Non-Profit Policy, Administration and Management, Information Technology and Project Management.  René is a certified Basic and Advance Family Mediator since 2010, and has mediated dozens of cases in the Justice Courts in Harris County, Texas. René serves on the Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, United States Department of State. He serves on the Executive Committee of the United Nations Council of Organizations. René can be contacted at [email protected]

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