A review of Mike Lee’s critique of Roberts, Obamacare

I just read an ebook by Utah Sen. Mike Lee, titled “Why John Roberts was Wrong About Healthcare: A Conservative Critique of the Supreme Court’s Obamacare Rule.” Published by Simon & Schuster’s Threshold Editions, it’s a thin work — my PDF review copy was 74 pages — that reminds one of a court brief without too much heavy legalese. It can be purchased here or here (for Nook). 

It’s not a bad read, and Lee, despite being loathed by many liberals and self-described moderates for his affiliation with Tea Party politics, is one of the U.S. Senate’s more intellectual members. His father is the late Rex Lee, solicitor general under President Ronald Reagan, and the senator served as a law clerk to current Supreme Court Justice Samuel Alito, when Alito was on the D.C. Court of Appeals.

Lee’s slim volume could be even shorter. There are federalist critiques that the high court has misinterpreted the Constitution by allowing more federal powers to be introduced via the commerce clause, etc., for example. There’s a gossipy chapter that wonders why Chief Justice Roberts came down in favor of the individual mandate. Although Lee dodges on a final answer, he spends a lot of e-ink on the idea that Roberts was worried that effectively ending Obamacare would hurt the court’s popularity, credibility and legacy. Another “pop theory” is that Roberts ruled for Obamacare in order to have credibility to lead the court on a more federalist, conservative future.

Lee’s case is stronger when he’s at his most concise. What he argues is that Roberts, in his decision upholding the individual mandate, had no constitutional standing to judicially change the mandate from a penalty to a tax. The high court cannot simply dictate and change a law created by Congress. As Lee writes, “the Court significantly undermined two of the Constitution’s most fundamental principles: (1) that the power of the federal government is limited, and not openended, 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.”

Lee argues that the court was correct in dismissing the Obama administration’s feeble argument that the individual mandate was a penalty allowed under the Commerce Clause. The court’s majority allowing the mandate by simply treating the mandate’s penalty as a tax “because Congress could have enforced the mandate by means of a tax” was, as court dissenters Justices Scalia, Kennedy, Thomas and Alito maintained, substituted a tax “not to interpret the statute but to rewrite it.”

Since the Bush administration, there have been concerns about the executive branch exceeding its authority, whether in the War on Terror or domestic concerns, such as avoiding rules on presidential nominations. The high court’s 5-4 decision to save the flawed Affordable Care Act by rewriting it seems to have emboldened the executive branch. The recent decision by the administration to casually break one statute of Obamacare — to have the employer mandate in place by Jan. 1 — might be construed as an aftereffect of Roberts’ majority decision.

But back to the ebook: Lee also addresses the high court’s decision that Obamacare unfairly forced states into expanding Medicaid with the coercive threat of losing all funding if they did not. The senator agrees with the initial ruling, but argues that due to the Medicaid-expansion issue, the court should have considered severing the Medicaid-expansion from the law. Instead, writes Lee, “rather than invalidating the Medicaid-expansion provisions as one would expect in light of the Court’s coercion ruling, the majority effectively rewrote them by categorically ordering the government not to exercise its right ‘to withdraw {from states} existing Medicaid funds for failure’ to expand their Medicaid programs pursuant to the ACA.”

Again, in what is the heart of Lee’s arguments, the high court improperly took for itself a legislative duty by rewriting a bad law in order to keep it alive.

Lee’s final chapter, “Where Do we Go From Here?” is a bit of a letdown, as it merely plugs  his U.S. Senate bill, S. 560, which would repeal language that allows Congress the right to enforce a tax to implement Obamacare. It’s a clever piece of legislation. Lee, after watching the high court change the penalty to a tax, wants to eliminate the taxing power. Once that happens, the individual mandate is gone. That’s fine, but it has absolutely zero chance of passage in a Senate ruled by Harry Reid.

However, 40-plus months after Obamacare was signed into the law. The law itself is the strongest argument against its implementation. With deadlines approaching or being delayed, the Affordable Care Act lays in the heat like a bloated dog, growling impotently. The employer mandate is delayed. Health exchanges are not ready. The individual mandate has resulted in an employment crisis, with businesses, as well as universities, cutting employees’ hours to fewer than 30 a week so they don’t have to insure the uninsured. Long ago promises that premiums would be reduced by thousands of dollars, or that scores of millions of the uninsured would be insured by 2023, have long drifted away into the memory hole. Frankly, if Obamacare exists in any semblance as envisioned in 2010 a generation from now, it will be a major surprise.

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13 Responses to A review of Mike Lee’s critique of Roberts, Obamacare

  1. Michael Trujillo says:

    Lee “is one of the U.S. Senate’s more intellectual members.”

    Funniest thing I’ve read in a while. Thanks for the laugh, Doug.

    • Doug Gibson says:

      It’s been my observation, Michael, that the sharpest brains are found on the Republican side of Congress.

      • Bob Becker says:

        Uh huh. Bachman. Gohmert. Inhofe. And Barton, who offered the following as an example of sharp Republican brain thinking on global warming in testimony before the House Energy Committee:

        “Wind is God’s way of balancing heat. Wind is the way you shift heat from areas where it’s hotter to areas where it’s cooler. That’s what wind is. Wouldn’t it be ironic if in the interest of global warming we mandated massive switches to energy, which is a finite resource, which slows the winds down, which causes the temperature to go up? Now, I’m not saying that’s going to happen, Mr. Chairman, but that is definitely something on the massive scale. I mean, it does make some sense. You stop something, you can’t transfer that heat, and the heat goes up. It’s just something to think about.”

        Or Paul Broun, of the House Science Committee who thinks “embriology… is a lie straight from the pit of Hell.”

        I stand in awe of the Congress’s sharp braind GOP thinkers…..

      • Michael Trujillo says:

        “When a physician removes a child from a woman, that is the largest organ in a body. That’s a big thing. That’s a big surgery. You don’t have any other organs in your body that are bigger than that.”
        —Alabama state Rep. Mary Sue McClurkin (R)

        “Like most men, I’m more opposed to violence against women than even violence against men. Because most men can handle it a little better than a lot of women can.”
        —Rep. Jimmy Duncan (R-Tenn.)

        “I was very proud of the fact that I didn’t get anything wrong that I said during the course of the debates. I didn’t get anything wrong, and that’s a huge arena.”
        —Rep. Michele Bachmann (R-Minn.)

        “You look at any country in the world…the higher the energy consumption, the higher their standard of living.”
        - Rick Santorum (GOP Pres. Candidate)

        “Now, I have a simple proposal: We send a package to everyone who’s here illegally and when it’s delivered, we pull it up in a computer, we know where they are.
        - Newt Gingrich on how to track Illegal immigrants

        “”I would hope that when a woman goes in to a physician with a rape issue, that physician will indeed ask her about perhaps her marriage, was this pregnancy caused by normal relations in a marriage or was it truly caused by a rape. I assume that’s part of the counseling that goes on.”
        - Chuck Winder (R- Idaho)

        “I think the right approach is to accept this horribly created — in the sense of rape — but nevertheless a gift in a very broken way, the gift of human life, and accept what God has given to you… rape victims should make the best of a bad situation.”
        - Rick Santorum (R – PA)

        ”Some girls rape easy.”
        - Roger Rivard (R-WI)

        ”As president, I will create 12 million new jobs.” coupled with this said 45 minutes later: “Government does not create jobs. Government does not create jobs.”
        - Mitt Romney

        • Michael Trujillo says:

          Forgot to add to my last comment:

          Yes, Doug, you’ve set a mighty low bar for Lee to clear regarding intellectualism.

        • laytonian says:

          Uh….Newt. If you’re sending the package to find out where the illegals are, how do you know where to send the package?

          Thanks, Michael, for the laughs.

      • Decider says:

        When comparing an object far, far away, it is easy to erroneously suggest that those close at hand are more substantial than those enormous landmarks, never visited. far off on the horizon.

  2. J. Hartwell says:

    Just by chance, did this proponent of conservative ideals and personal responsibility happen to include a guide on how to short sell your house, leaving your mortgage bank to take a $400,000 loss? And then rent a home from the man you sold to, (a federal contractor AND campaign donor)?

  3. Neal Cassidy says:

    Doug if you think the sharpest brains are found in the current Republicans in the House I fear the day the duller ones get elected. Unless you are chaneling your inner Jon Kyl(R-AZ) who said after being caught making a false claim during congressional debate “Not intended to be a factual statement”.

  4. Dovie says:

    http://www.sltrib.com/sltrib/opinion/56582508-82/law-republicans-health-rep.html.csp

    administration….delaying by a year…one of Obamacare’s provisions, the requirement that large employers provide health insurance. You’d think the opposition party, which has spent four years denouncing the health care reforms, would be delighted by the reprieve.

    “This committee intends to get an explanation,” proclaimed Rep. Kevin Brady, R-Texas, chairman of the subcommittee holding the hearing. “This committee has serious questions about how and why this alarming decision was made and the effect that delaying this key provision will have on other provisions of the law.”

    It was kind of the chairman to show such thoughtful concern for a law he wants repealed. And if Brady saw the delay as “alarming,” others were apoplectic. “Boy, I’ll tell you,” Rep. Sam Johnson, R-Texas, said, beginning his remarks. “I hate to see a dictatorship come into this country, but it sure looks like that’s what’s happening with health care.”

    “We see this as definitely something that leans toward socialism,” proclaimed Rep. Devin Nunes, R-Calif.

    President Obama was called a dictator and a socialist for passing Obamacare. Now he’s a dictator and a socialist for postponing it? “The irony of objecting to the delay of a program you’ve been trying to stop is no doubt lost on this room,” observed Rep. Jim McDermott of Washington, the ranking Democrat on the subcommittee.

  5. Stephen M Cook says:

    The American Conservative Movement no longer has an intellectual core; its all about knowing truth through listening to your gut, and making specious arguments about already settled constitutional case law.

    Might as well read Bork explain why virtually all findings handed down since 1795 are “unconstitutional”, due to a misreading of the commerce clause.

    These folks are interesting in the abstract, gods help us when they are in power. Mr. Lee takes advantage of his unschooled constituency, and makes a name for himself.
    However, it is not a name you would utter in polite progressive society.

  6. Yuk Yuk says:

    Don’t forget about the bright Democrats in Congress.

    Hank Johnson from Georgia was worried that putting too many troops on the island of Guam would cause it to tip over.

    Sheila Jackson Lee from Texas was learning about the Mars Pathfinder rover and asked if the rover had been able to send back pictures of the flag planted back in 1969 by Neil Armstrong.

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