Sen. Mike Lee, R-Utah, a former clerk to Justice Sam Alito, said on Friday that there were “signals” in the Supreme Court’s health care opinions that Chief Justice John Roberts initially voted to strike down the health care law’s individual mandate, but later changed his vote.
When I spoke with Lee on Monday, he had expressed confidence that Roberts would declare the mandate unconstitutional.
“I don’t know,” Lee said in a telephone interview. “I didn’t see this coming. I confer with a lot of Supreme Court watchers, liberal and conservative alike and nobody saw this coming, this particular outcome. This is not what I expected, not what I wanted, but it happened.”
I asked Lee about speculation that the joint dissent filed by Antonin Scalia, Anthony Kennedy and Clarence Thomas and Alito – which argued for invalidating all of Obamacare – was originally drafted as the majority opinion. Among other things, the dissent spends much of the time attacking the government’s arguments, as well as a dissent from Ginsburg, and only passingly refers to the actual majority opinion. This has been seen by some as a strong indication that Roberts may have changed his vote.
“I noticed the same thing,” Lee said. “Although I don’t know exactly what happened within the Court, these are the kinds of signals you tend to see when something like that does happen. It made no sense to me that the dissent referred repeatedly to the ‘Ginsburg dissent’ instead of the ‘Ginsburg concurring opinion,’ for example. And it was written like it was expected to be a majority opinion. And although I don’t know exactly what happened there, that is the sort of thing you tend to see when somebody switches their vote.”
Earlier in our talk, Lee had expressed concern about the “intimidation tactics” being used by Democrats and President Obama in preemptively attacking the Supreme Court, which “seemed to suggest that it’s just the job of the Supreme Court…to grant the imprimatur of constitutional legitimacy to any duly enacted major legislation.”
I asked if he thought these tactics may have influenced Roberts.
“I certainly think that was the intent underlying those statements,” he said. “I try not to engage in too many layers of speculation, so I can’t prove that Chief Justice Roberts switched his vote. There are certainly signals to that effect here. But even if we reach that conclusion, we can’t be certain without Chief Justice Roberts telling us that he was influenced by that or any other single factor. But what we do know is that was the rather clear intent of those that were making those statements and there are certainly signals Chief Justice Roberts changed his mind and changed his vote, just based on the way the opinions are set up.”
As for the decision itself, Lee said that the ruling the mandate was a tax may doom it politically.
“I think it’s a victory for the mandate, but insofar as a victory for the mandate it will prove to be a hallow and somewhat short-lived victory, because an already unpopular individual mandate is not exactly going to be made more popular by virtue of now being called a tax,” he said.
At the same time, he was concerned about the legal precedent being set by the taxing power finding, which he said amounted to a rewriting of the law. Also, for the first time it extended the taxing power to allow Congress to compel people to purchase a product, rather than discourage behavior.
“This is a new rule fashioned from whole cloth,” he said. “It rests on the broad notion that the taxing power has long been deemed to be broader than the Commerce Clause power and that’s basically it. Yeah, there’s no precedent for it. Nor is there any precedent for taking an act of Congress that Congress went out of its way to say is not a tax and then converting it into a tax against the will of Congress.”
He continued, “It’s still unprecedented that the coercive power of the federal government is being used for the first time now and could be used perhaps in the future based on this precedent to coerce people, to force people, to buy a particular product, that they don’t want to buy.”
Though he agreed with the ruling that the health care law’s Medicaid expansion was coercive to the states and was encouraged by that, the Court decided that the mandate didn’t pass muster under the Commerce Clause. He said the “(Commerce Clause) aspect of the opinion is overshadowed by the fact that the Court still went on to conclude that this was a valid exercise of the taxing power.”
The bottom line, Lee said, is that “one of the benefits of living in a Constitutional republic is supposed to be that you have a court that will step from time to time and contravene the popular will, even the actions of the political branches, in order to say, ‘This is beyond their power. They can’t do to do this, no matter how popular it may be. No matter how well liked the legislators who vote for this are, government can’t do this.’ And that’s what we were supposed to be getting when we adopted the Constitution, which was a national legislature that possessed limited and enumerated powers. It is very different to reconcile that notion…with the notion that they can compel you to buy anything, just because they decide they want to.”