Yesterday's U.S. Supreme Court decision involving the Environmental Protection Agency's authority to regulate greenhouse gases was generally a big victory for the Barack Obama administration. But the court's opinion contains a poison pill, one that lawyers will undoubtedly invoke in future cases involving the Affordable Care Act.

While the decision, written by Justice Antonin Scalia, largely upheld the EPA's authority, it invalidated the agency's decision to exempt small emitters and thus "tailor" its greenhouse-gas regulations to allow greater flexibility. The text of the Clean Air Act seems to prohibit the EPA from creating such exemptions, but there are millions of small emitters, and the EPA invoked the idea of "administrative necessity" to exempt them.

The court's response was simple: "An agency has no power to 'tailor' legislation to bureaucratic policy goals by rewriting unambiguous statutory terms." The EPA's argument, Scalia wrote, "would deal a severe blow to the Constitution's separation of powers," because the president lacks the power "to revise clear statutory terms that turn out not to work in practice." In the context of the Affordable Care Act, of course, there have been heated controversies over the Obama administration's efforts to delay implementation and to create other forms of flexibility. The Department of Health and Human Services has, for example, provided "transition relief" by postponing deadlines for complying with some of the act's requirements. Some critics who have objected that the executive branch has no power to change "statutory terms that turn out not to work in practice" will take yesterday's opinion as an endorsement of their views with respect to the Affordable Care Act.

At the same time, the court appeared to identify an acceptable approach to increasing flexibility. It said that an executive agency is permitted to exercise its discretion by announcing, in public, that it will not enforce certain requirements. In the court's view, a refusal to enforce legal requirements is not the same as an effort to alter those requirements.

It is too soon, of course, to know whether the court will count "transition relief" under the Affordable Care Act as an illegitimate effort "to revise clear statutory terms that turn out not to work in practice," as a legitimate refusal to enforce legal requirements, or as something else altogether. But there's no question that the court's discussion will be invoked in Affordable Care Act litigation -- and it is reasonable to wonder whether Scalia had that in mind as he wrote the EPA opinion.


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