Glenn has always been a fan of Senator Mike Lee (R-UT), and this morning, Sen. Lee joined the radio program to talk about his new book Why John Roberts Was Wrong About Healthcare. In the book, Lee examined how several Democrats targeted Roberts and claimed his legacy would be tarnished if he didn't uphold Obamacare and that by looking at the dissenting opinion it appears Roberts may have switched his vote.
“Mike Lee is a friend of mine and one of the really good guys in Congress,” Glenn said. “Senator Mike Lee is a guy who knows the Constitution inside and out and is a fierce, fierce opponent of anybody who stands against it.”
In his new book, Sen. Lee explains how the Supreme Court ruled on the Affordable Care Act last June and why he thinks Chief Justice John Roberts may have been intimidated into changing his vote.
“So in my book, I explain what the Supreme Court did when it upheld this law. Even after finding this it exceeded Congress' authority under the Constitution, the Supreme Court rewrote it in order to save it. Rewrote it not just once, but twice,” he said. “As I pointed out in the book, there are a lot of indication that Chief Justice Roberts may well have taken a different approach right after oral argument, but then changed his position. And it just so happens that it was during that same period of time, between the oral argument and the time the court issued the opinion on June 28 of last year, that there was a real campaign of intimidation by a lot of Democrats in the Senate, and also by the White House.”
During that period of time, Sen. Lee points to the statements made by many Democrats regarding how history will remember Roberts and how his credibility and legacy will be irreparably tarnished if he did not uphold Obamacare.
Furthermore, Sen. Lee, a former Supreme Court clerk for Justice Samuel Alito, describes the unusual tone of the dissenting opinion that led him to believe it may once have been written as the majority opinion.
“First of all, the mere fact that the dissenting opinion was written in many respects in the language of a majority opinion – it self-suggests to me that originally, Chief Justice Roberts was going to be part of what would have been a majority opinion,” Sen. Lee explained. “It doesn't sound like a dissent. It refutes the arguments put forward by the government more than it does direct itself primarily toward refuting the arguments of the opinion of the court.”
“There are a lot of people that said, ‘Oh, look how great this is. He's coming across the aisle,’” Glenn said of Roberts’ vote.
“Yes, and I specifically address that point,” Sen. Lee responded. “What I explain is there is no aisle in the Supreme Court. There is no aisle on that bench. Either literally or figuratively.”
The culture of the Supreme Court, according to Sen. Lee, is such that once a justice is confirmed by the Senate, the significance of whether one is appointed by a Republican or Democrat becomes “completely irrelevant.”
“So what I do is try to debunk systematically these argument that is suggest that this may have just been a brilliant move by John Roberts to try to preserve his reputation as Chief Justice,” Sen. Lee said. “It is not about reputation. It is about the right answer under the law. The right answer was not to rewrite the thing in order to save it.”
One of the primary problems with the Supreme Court’s decision to uphold the law was the reasoning behind it. Obamacare was unable to pass the Democratically controlled House and Senate as a ‘tax’ because it was so politically toxic, and yet the Supreme Court ruled in favor of the law based on the fact that it is, in fact, a tax.
“It required a difficult act of legal gymnastics,” Sen. Lee said of Obamacare’s upholding. “As I explained, what [Roberts] did was to say you know, I know this appears to be a penalty. And, in fact, he found that it was a penalty and not a tax for purposes of the anti-injunction action, which had he reached the opposite conclusion would have said the court couldn't even address this case right now, probably for another two years after that.”
Basically, the Supreme Court ruled the ACA is a penalty for some purposes and a tax for others. When it came to the Constitutional analysis, the law ultimately had to be ruled a tax or else it would have been unconstitutional.
One of the primary reasons Sen. Lee chose to write this book is because the issue is much larger than any single law or Supreme Court decision. Stu pointed out his personal frustration with the fact that it always seems people on right are compromising, while those on the left rarely do. “It’s never Justice Ginsberg,” Stu said.
“The quickest explanation, the natural gravitational pull in Washington is towards bigger government and toward the erosion of the separation of powers along the vertical and horizontal axes,” Sen. Lee said. “That is the natural gravitational pull in this city. The reason we have hope is that the national gravitational pull the American people feel is not in that direction. Momentum is starting to move and it is moving in our favor. I explained in the book, we can move it, but we have to motivate people to expect more.”
“It's always a pleasure and I'm glad that you are in Congress,” Glenn said. “Senator Mike Lee, thank you so much for everything that you do. God bless.”
