As America waits for the final Supreme Court rulings of this session, Utah Sen. Mike Lee is revisiting the landmark Obamacare ruling by the Supreme Court from last June and explaining why Chief Justice John Roberts failed to follow the Constitution in upholding the individual mandate.
Lee is the author the the ebook, “Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme Court’s Obamacare Decision”. Lee is a member of the Senate Judiciary Committee. He is a former assistant U.S. attorney and a former Supreme Court clerk for Justice Samuel Alito.
“I wrote it first and foremost to explain to people that what the court did in that case was to make law, to legislate. The chief justice rewrote Obamacare in order to save it. He amended it no just once but twice in order to save it from an otherwise inevitable finding of unconstitutionality and that’s a problem,” said Lee, referring to Chief Justice Roberts ruling that the mandate failed several constitutional tests but survived as a tax, which is within the power of Congress. Democrats have always insisted that the fee imposed for not complying with the mandate is not a tax.
The majority opinion also altered the Medicaid provisions within the law.
“I can’t think of any other instance in which a court so blatantly rewrote legislation in order to save it. There have been instances where a court will look the other way, where a court will pay short shrift to this or that aspect of the analysis before it. But I can’t think of another case where the court has rewritten a statute not just once but twice in order to go to obviously great lengths to avoid a finding that it’s unconstitutional,” said Lee.
Roberts defended his decision by saying a court’s role is to save a statute if there is a way to plausibly claim it’s constitutional. Lee says that was one of the chief justice’s major mistakes.
“That’s where he went wrong. It’s true that when courts are reviewing a statute against a constitutional challenge, to the extent that there are ambiguities, to the extent that you can read a provision one way or the other, the court’s supposed to favor any possible reading of the statute that would save it,” said Lee. “The reading that he adopted was not fairly possible. It was unambiguous based on the text that what Congress did contravened the Constitution. And that’s why he messed up.”
Shortly after the 5-4 ruling was handed down last summer, reports surfaced that Roberts originally sided with the three conservative justices and swing vote Anthony Kennedy to find the individual mandate unconstitutional. Sometime between the oral arguments in March and the final verdict in June, Roberts flipped his vote to uphold Obamacare.
Speculation at the time suggested public pressure from President Obama and other supporters of the law succeeded in convincing Roberts to find a way to uphold Obamacare.
Lee believes that’s largely correct. He says the construction of the minority opinion demonstrates that it was the majority opinion at one time but Roberts ultimately succumbed to the pressure.
“This change in his vote likely occurred about the same time when I saw a big uptick in the public criticism against Chief Justice Roberts. It was sort of preemptive criticism from Democrats in the Senate and from the White House counseling him, pleading with him, warning him , insisting that it would be a form of judicial activism if he invalidated a law that was ‘duly enacted by an elected Congress’. So yeah, it does appear to have had that effect,” said Lee.
Roberts was first nominated to the Supreme Court as a replacement for retiring Justice Sandra Day O’Connor in the summer of 2005. When Chief Justice William Rehnquist died just weeks later, Bush shifted the nomination for Roberts to become Chief Justice. In almost eight years in that role, Lee says Roberts has honored his oath very well but the one exception to that record could not have come on a more important case.
“For the most part, he has been consistent with his oath to uphold the Constitution. He has been a judicial conservative, what you would call a textualist, someone who tries to read the law based on what it says rather than what he wishes it said,” said Lee. “This case was an aberraton, not only in its outcome but also in the fact that I’m not sure there’s ever been another case that he’s decided that was as prominent and as far-reaching in its implications as this one. Nor was there any other case in which there was so much attention paid to him personally related to the outcome of the case.”
