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Why John Roberts Was Wrong

Could a short, important, easy to read, inexpensive document be any more unlike the usual product of a senator?

By 6.21.13

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What if I told you that for $3.79 and in less than an hour, you could learn more about the Founding principles of the United States of America and about the operation of our Supreme Court than you (or at least I) learned in a typical college political science course?

That's how I felt after reading the new 74-page e-book by Senator Mike Lee (R-UT), entitled Why John Roberts Was Wrong About Healthcare: A Conservative Critique of The Supreme Court's Obamacare Ruling.

Senator Lee's credentials to write this pamphlet are unmatched (with the possible exception of Senator John Cornyn), having argued before federal appellate courts and having clerked for Supreme Court Justice Samuel Alito. Lee's interest in the rule of law is in his blood, as he had the opportunity to watch his father, Rex Lee, who served as the Solicitor General of the United States, argue many cases before the Supreme Court.

But beyond -- and more important than -- his credentials, Mike Lee's writing oozes with commitment. For this senator, the word "unconstitutional" is not simply an utterance of occasional political convenience.

Many conservatives tried to make lemonade out of the rotten lemons of Chief Justice John Roberts' change of heart, which allowed Obamacare miraculously to be found constitutional. Some said that the ruling that the law's individual mandate was not permissible under the Commerce Clause (but was eventually found permissible anyway) shows a new limitation on the ability of Congress to expand its powers. They said that Roberts is giving himself leeway to be more conservative in the future by showing that the Court is not purely partisan.

Lee (like me) will have none of it, and in this new e-book explains in plain English the many things so very wrong with the Court's ruling in NFIB v. Sebelius, with specific focus on how through John Roberts' errors, "in rewriting the ACA in order to save it—not just once, but twice—the Court significantly undermined two of the Constitution’s most fundamental principles: (1) that the power of the federal government is limited, and not open-ended, and (2) that the power to legislate (i.e., the power to prescribe generally applicable rules carrying the coercive force of law) is vested in Congress, and not in the courts."

Sharing the dissenting justices' focus, Senator Lee emphasizes "that what was important was not what Congress could have done, but instead what Congress did." He heaps repeated and well-founded scorn on the trampling of principles of jurisprudence which are at least as old as the Court which just destroyed them.

Reading analysis of court opinions, full of "Slip op"s and italicized case names and ibids, is often the literary equivalent of trying to whistle after eating a few saltines. Yet Senator's Lee has an ability to replace dry prose with near-poetry:

[T]he NFIB decision, viewed as a whole, may best be understood as a signal that the Supreme Court is willing and eager to facilitate the federal government's expansion, even where the proposed expansion fails successfully to navigate between the Scylla of the Constitution's limitations on federal power and the Charybdis of the political process.

One of the most obvious problems with the majority opinion in the Obamacare ruling is that the court determined it could rule on the objection to the law's individual mandate because the result of a citizen's non-compliance was a penalty, not a tax. (If it were a tax, the Court could not hear the case until the tax had actually been levied on someone.)

But then, with a perversion of reason and justice that one normally expects from liberals rather than a supposedly conservative attorney and jurist, John Roberts rewrote the legislation to say that the mandate's penalty could have been constitutional if it been passed as a tax, so the Court will deem it a tax and uphold it. My seven-year old daughter would see the hypocrisy. One can imagine Mike Lee feeling physically angry while writing of Roberts' betrayal of principle and of the nation; I do when I read it.

Lee makes the critical point that the power to legislate was intentionally placed by our Founders solely within Congress, in large part because representatives and senators have to face the voters, unlike Supreme Court justices who serve until they retire, die, or are impeached. (Only one Supreme Court justice, Samuel Chase, a signer of the Declaration of Independence, was ever impeached. The charges were brought by the House of Representatives regarding trials he presided over while serving on a lower court, and Chase was acquitted by the Senate.)

By giving itself the power to tax, the Supreme Court, with the collaboration of turncoat John Roberts, has created a grave danger for the future of our nation: "We must remember that the power to tax is the power to seize property — the very same property that the government exists to protect... Government expansion isn't free. The people pay first in taxes and then in liberty."

Beyond the destructive pretzel logic involved in upholding the clearly unconstitutional individual mandate, Lee explains the terrible judgment behind the Court's decision to save Obamacare's provision on the expansion of Medicare -- again by rewriting it. He describes, continuing in remarkably plain English, how the Chief Justice compounded his many errors by saying that the law is severable, namely that it remains in force despite the fact that the Court's changes will likely cause very different operation of the law from that intended by the law's already misguided authors and supporters.

Mike Lee makes clear how the Court's actions, and particularly those of "conservative" John Roberts, will exacerbate the willingness of members of Congress (and the president) to punt on questions of constitutionality, despite our elected politicians' swearing no less of an oath to protect and defend the Constitution than judges do. "The cumulative and inevitable result of this swampy water will be corruption, loss of property, loss of liberty, and ultimately the decay of representative government."

Finally, as Lee is rarely one to point out a problem without suggesting a solution, the senator closes his valuable treatise with an explanation of a bill he has authored and introduced in the Senate, S. 560, which says simply that the Obamacare mandate penalty is indeed a penalty, and explicitly not a tax.

If the bill were to pass, the mandate would become immediately unconstitutional, and the rest of Obamacare would likely fall with it. If it did not pass, those who voted against it would be on record as having voted for a tax increase, a particularly uncomfortable position for those Democrats who argued early and often that the de facto government takeover of the health insurance industry did not represent a tax hike.

S. 560 represents an elegant way to demonstrate commitment to principle while highlighting the true nature of those in the political class who would be our rulers rather than public servants.

For those of us who take our politics seriously, it is high praise to suggest that anyone, particularly a member of Congress, would be a good candidate for President of the United States. And while I've made such a suggestion several times, it occurs to me that there is higher possible praise, a compliment which I have never before offered to a politician: Mike Lee would be a remarkable Supreme Court justice.

If you have any interest in the operation, or more precisely the mis-operation, of our nation's highest court, in this black mark on John Roberts' legacy (as I called it within moments of the Court's ruling in the Obamcare case), and in the refreshing reminder (from a senator, no less) that our Constitution really does matter, Senator Mike Lee's Why John Roberts Was Wrong About Healthcare will give you hope that at least someone knows what is wrong, and what to do about it -- and it will do all that in less than an hour of reading and for less than $4. 

Photo: UPI

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About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.