One year ago this week, the Supreme Court issued a ruling in National Federation of Independent Business v. Sebelius, the legal challenge to Obamacare, which is perhaps the most important, most controversial decision in years.
In a new e-book, Sen. Mike Lee (R-UT) explains what how Chief Justice John Roberts, the author of the majority opinion of the Court, got the case wrong and what motivations he had in ensuring the Obama Administration’s desired outcome.
Lee has a firm grasp of the constitutional law. His father, Rex Lee, served as Solicitor General in the Reagan Administration. In an March interview with United Liberty, Lee said that the “Constitution was a regular talking point in my home.”
“I think I was 30 before I realized not every family talks about the Presentment Clause of Article I, Section 7 around the dinner table,” he added.
Before becoming the junior Senator from Utah in 2011, Lee served as a law clerk to Supreme Court Justice Samuel Alito before moving onto private practice and later serving as an Assistant United States Attorney in Salt Lake City.
The e-book, Why John Roberts Was Wrong About Healthcare: A Conservative Critique of The Supreme Court’s Obamacare Ruling (Threshold Editions, 78 pages, $3.79), Lee offers an thoughtful, intuitive exposition of the opinion written by the Chief Justice. He also explains how Roberts and the Court rewrote Obamacare in order to save it.
Lee parses through the four legal questions in the case, paying the most attention to the ruling on the individual mandate, which is truly the heart of Obamacare, and Medicaid expansion. He notes that while Roberts dismissed the administration’s arguments for the law based on the Commerce Clause, the Court instead created a dangerous new precedent through the Taxing Power of Congress and undermined legislative intent.
Lee argues that the mandate is a penalty and not a “tax,” as concluded by the Supreme Court. He notes that for purposes of the Anti-Injunction Act, which prevents legal challenges to a tax from being considered until revenues are collected, the Court ruled that the individual mandate was a penalty.
But when it came to the constitutional justification of the individual mandate, Lee explains that the Court got creative by calling it a tax.
“This novel act of verbal gymnastics resulted in the Court’s amending the ACA, completely circumventing the legislative process prescribed by the Constitution,” Lee notes. “The Supreme Court’s willingness to transform the ACA’s individual mandate into a tax—and thereby save the mandate from an otherwise inevitable finding that the mandate was unconstitutional was both stunning and without precedent.”
“The Court’s job was not to ascertain whether Congress could have achieved the same ends by properly invoking its taxing power. Nor was it the Court’s job to make any change to the statute that might be necessary to save it,” he writes. “Rather, the Court’s job was to decide whether what Congress actually enacted was a valid exercise of Congress’s power to tax.”
Lee also explained why the Court was wrong to rewrite the Obamacare’s Medicaid provisions. His arguments aren’t in support of Medicaid expansion, which he found to be coercive because failure to accept expansion put preexisting welfare funds at risk. Lee’s object is based on support of long-held legal principles. He explains that the Court chosen to, once again, rewrite Obamacare rather than deal with the inconvenience of precedent.
But what were Roberts’ motivations for leading the Court to down such a peculiar path? Lee notes that Roberts, who had been a fairly consistent conservative vote on the Court, was skeptical of the Obama Administration’s legal case for the law. In fact, he points reports that had Roberts initially voting to strike down the individual mandate in the Court’s private conference and assigning himself to write the opinion with the four conservative-leaning members joining him.
Lee goes through the various theories that have arisen on this question, including public prodding by President Barack Obama and congressional Democrats and speculation that Roberts wanted protect the Court’s “institutional credibility.”
In closing, Lee explains what opponents of the law can do to further weaken the law, in spite of the Court’s decision. He suggests keeping pressure on members of Congress who voted for it. But Lee presents another idea.
“The best solution (short of our eventual goal of full repeal) would focus the public’s attention on the painful irony that the ACA’s strongest supporters have tried so hard to avoid: Congress could never have passed the ACA if the individual mandate had been presented as a tax—and strong Democratic majorities in both Houses of Congress refused to pass it as a tax—but the Supreme Court upheld the mandate only by turning it into a tax,” he writes. “This irony is only compounded by the fact that many of the ACA’s biggest champions in Congress are still insisting that the mandate is not a tax.”
“It’s time to call their bluff: we need to put to a vote the issue of whether the individual mandate is a tax,” he adds, pointing to legislation he has introduced in the Senate that would settle the lingering question. He explains that if it legislation were enacted, it would “gut the individual mandate provision” by making it “constitutionally orphaned” and render the Court’s decision meaningless.
Lee knows that his legislation faces a big hurdle in the Senate, which is controlled by Democrats, believes that public pressure could turn the tide and force Congress to take a stand on the lingering questions facing the individual mandate.