Sen. Mike Lee: Why John Roberts Was Wrong About Healthcare

August 2, 2013 - 2:56 PM

Sen. Mike Lee

Sen. Mike Lee (AP Photo)

(CNSNews.com) - Chief Justice John Roberts’ 2012 opinion declaring the Obamacare law constitutional was self-contradictory, intellectually indefensible and just plain wrong.

Thus argues Sen. Mike Lee (R.-Utah) in a new e-book, Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme Court's Obamacare Ruling.

Lee appeared on Online With Terry Jeffrey to discuss the book, what he sees as the potential long-term ramifications of Roberts’ decision, and what he believes Congress should do to counter it.

Terry Jeffrey: Sen. Mike Lee of Utah was elected to the Senate in 2010. He graduated from Brigham Young University and BYU Law School. He clerked for Judge Dee Benson on the U.S. District Court in Utah and then for Appellate Judge Sam Alito on the U.S. Court of Appeals for the Third Circuit and then again on the U.S. Supreme Court. His father, the late Rex Lee, was solicitor general for President Ronald Reagan and argued 59 cases before the Supreme Court.

When he was young, Lee sat in the court chamber and watched many of those arguments. We are going to talk to him today about his new book, Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme Court's Obamacare Ruling. Senator Lee, thanks very much for doing this.

Sen. Mike Lee (R.-Utah): Thank you.

Jeffrey: Now, in your book you talk about some important provisions in the Constitution that have been, are, very central to what is going on in the Obamacare issue. First, the Commerce Clause. Article 1, Section 8 of the Constitution says Congress shall have the power to regulate commerce with foreign nations, among the several states and with Indian tribes. For much of the nation’s history, how was that clause interpreted? What sort of power did it actually give the federal government?

Why John Roberts Was Wrong About Healthcare

Lee: It was understood as giving the federal government the power to regulate channels and instrumentalities of interstate commerce. So, interstate waterways, for example, or interstate roads, but it wasn’t until about 75 years ago that we expanded it dramatically. So it was no longer about interstate channels and instrumentalities and interstate commercial transactions where we were just regulating trade between the states and with foreign nations. All of a sudden the Supreme Court says we’re not going to interfere, we’re not going to invalidate, if you legislate under the Commerce Clause, as long as what you are regulating has some substantial effect on interstate commerce.

Jeffrey: So, originally what the Founding Fathers meant by the Commerce Clause was that if someone in Utah was going to sell a product to someone in California that the federal government could regulate that transaction.

Lee: That is right. They can regulate that transaction; they can also regulate the routes between the states.

Jeffrey: They can regulate the road or the canal or the highway? They can regulate the Hudson River, for example?

Lee: Sure.

Jeffrey: But, on the other hand, under the way the Founding Fathers looked at it, if someone was growing wheat in their backyard in Ohio, was that something the federal government could regulate?

Chief Justice John Roberts and President Barack Obama

Chief Justice John Roberts and President Barack Obama (AP Photo/J. Scott Applewhite)

Lee: Certainly not. It wouldn’t have been until the Supreme Court started expanding its jurisprudence. You know, the wheat example is one that I discuss in the book. You had a farmer named Roscoe Filburn, who was growing wheat. He grew that wheat in excess of federal limits. He grew more wheat than the experts in Washington said that it was appropriate for any American to grow and he was fined quite heavily. So he challenged that. He said, look, Congress doesn’t have any jurisdiction over this wheat, because the wheat I produced in excess of the limit was wheat that I kept on my own farm. It never entered interstate commerce. In fact, it never entered commerce at all because we use that wheat to feed my family, to feed my animals, and to provide seed for future seasons.

Jeffrey: That case was what, 1941?

Lee: Wickard was 1942.

Jeffrey: From the ratification of the Constitution all the way to 1942, an American can grow wheat on his own property, he can feed it to his own livestock, he can feed it to his family, and the federal government has nothing to do with it?

Lee: That’s basically right. The transformation started in 1937 in  a case called the NLRB v. Jones and Laughlin Steel. That case set the predicate that reached its fruition in 1942 in Wickard v. Filburn.

Jeffrey: This expansion of the Commerce Clause?

Lee: Yes.

Jeffrey: So, then when we flash forward, it’s 2010, and the president is trying to get Congress to enact Obamacare and they are trying to impose the individual mandate, requiring individuals to go out and purchase health insurance, if they’re not. How did they justify that? What constitutional power did the administration and members of Congress who advocated the mandate, invoke to say they had the authority to do that?

Lee: Well, they invoked the Commerce Clause. Because only twice since 1937 had the Supreme Court identified anything the Congress had passed under the Commerce Clause that was outside the Congress’ authority. In those two instances, Congress just got sloppy. It got reckless with the way it was drafting things. And so they were pretty confident this would pass, even though skeptics like me looked at it and said: Look, there is really no limit if Congress can regulate not only activity that substantially affects interstate commerce, but also inactivity and compel people to do something through the Commerce Clause.

Jeffrey: So, this is the equivalent--this farmer Roscoe Filburn--the person they said you can’t grow that wheat on your own land even if you never sell it to anybody. Now, if Mr. Filburn decided I am not going to grow wheat, what the Obama administration and people in Congress are saying with Obamacare is in effect: We can force you to grow wheat even if you don’t want to.

Lee: That would be an odd scenario, but taken to its logical conclusion, the analytical framework they were using would suggest precisely that.

Jeffrey: That they could make someone do something they do not want to do.

Lee: That’s right.

Jeffrey: Okay.

Lee: Now the Supreme Court, of course, in this case, in the Obamacare case, said that Congress can’t do that under the Commerce Clause, Congress can’t impose a penalty for that, but that’s where the problem came in and that’s why I wrote the book, because the Supreme Court then rewrote the penalty provision as a tax.

Jeffrey: Well, let’s talk about the decision. So there’s a number of issues. They pass it. They say the reason they can force individuals to buy health care is because of the Commerce Clause, a novel use of this power, and it goes all the way to the Supreme Court. But then there’s another problem you talk about in your book. It’s the Anti-Injunction Act. What was the question there?

Lee: Okay, to put it into simple terms: The Anti-Injunction Act provided that if this was in fact a tax, if in other words, the penalty attached to the individual mandate was a tax, then for jurisdictional reasons related to the Anti-Injunction Act, the Supreme Court would not be able to hear the case until, at the earliest, after the individual mandate kicked in and the government started actually imposing these penalties.

Jeffrey: So someone actually had to be taxed and claimed that they are injured by the tax--

Lee: Before they could challenge it in court.

Jeffrey: --and they could go to court.

Lee: That’s right

Jeffrey: And, so, we’re talking about Chief Justice John Roberts, this is the person whose alleged reasoning put this whole thing together. So in the decision that Chief Justice Roberts signed off on, the first question was: Was this a tax or not? And, therefore, would people have to wait if it was a tax until at least 2014 to sue, and what did he decide?

Lee: He concluded this is not a tax, it’s a penalty. Using a hundred years worth of jurisprudence, the court easily found the text used by Congress, the text passed into law by Congress, signed into law by the president, imposed a penalty, not a tax.

Jeffrey: And it uses that word in the law, penalty?

Lee: Yes.

Jeffrey: The law says penalty?

Lee: Yes

Jeffrey: And so when Chief Justice John Roberts was looking at the case, the first hurdle he had to get over was whether or not the Anti-Injunction Act prevented people from even suing because it was a tax and therefore they would have to wait. He decided the word penalty in the law meant penalty?

Lee: The language in the law rather makes it a penalty not a tax.

Jeffrey: So he decided it’s a penalty, it’s not a tax?

Lee: Correct.

Jeffrey: Okay, now.

Lee: And he had to reach that conclusion, otherwise the court had no jurisdiction, no authority to hear this case and decide these issues.

Jeffrey: Otherwise they throw the case out.

Lee: Correct.

Jeffrey: Okay, so then the next question was: Did the Congress legitimately have this power they’re claiming under the Commerce Clause, to force you and me to go out and buy health insurance if we didn’t want to? And what did Justice Roberts decide there?

Lee: He concluded, as part of a 5-4 majority, that Congress doesn’t have the power under the Commerce Clause to penalize people who refuse to buy health insurance that Congress says they must purchase.

Jeffrey: So he was saying the basic power that the Obama administration and its allies in Congress were claiming from the Constitution authorized them to order people to buy health insurance, they didn’t have it.

Lee: They didn’t have that.

Jeffrey: So he was saying it is a penalty that they are imposing, and they’re overreaching the constitutional power of Congress by saying people must buy health insurance.

Lee: That’s correct. And as he’s announcing this from the bench, you could sense emotions throughout the courtroom. It was almost palpable. Limited government conservatives in the courtroom were elated because they thought: Oh, we’ve won. We’ve won. This is a huge victory for federalism. Liberals in the courtroom were crestfallen. You could feel it.

Jeffrey: Because he was basically saying the Obamacare mandate is unconstitutional?

Lee: Correct. And the court had already ruled that this was a penalty, that it was not a tax.

Jeffrey: So then he brought out a third part of his argument. And what was that?

Lee: Well, that argument was notwithstanding the fact that Congress has no authority to do this under the Commerce Clause, Congress does have authority--it would have authority to do it--if it were in fact a tax. In other words, the chief justice said Congress could have enforced the individual mandate with a tax, and, therefore, we must consider whether this can be construed as a tax even though we have already found that it is not a tax, it is a penalty for purposes of the Anti-Injunction Act.

Jeffrey: He was saying if Congress, instead of saying making a penalty—saying you must buy health insurance or we’ll penalize you--if Congress had said you can buy health insurance whether you want to or not, but if you don’t we’ll impose a tax on you. He was saying they could do, in his view, under the Constitution, the latter thing.

Lee: Yes, and that’s where he went with it. So he said: Notwithstanding the fact Congress has no power to do this under the Commerce Clause, we must next assess whether Congress could do this if it were a tax. And if it could do it, can we look at the language and can we say that this is sufficiently like a tax that we can call it a tax for purposes of assessing whether Congress had the authority to enact this particular provision?

Jeffrey: This is already after he ruled it was not a tax, it was a penalty, and if it was a tax, people could not bring suit.

Lee: He had already ruled that this was not a tax and that it was a penalty. And yet he concluded that this was a tax, or could be construed as a tax, it could be deemed a tax, for purposes of allowing Congress to do it. Notwithstanding the fact that under 100 years of jurisprudence, when you look at the text of that statute, there’s no question that this was a penalty and not a tax.

Notwithstanding the fact that Congress had tried to pass the individual mandate’s enforcement procedure with a tax. It failed to achieve the votes necessary to do that. It’s not terribly surprising, new taxes, especially new taxes on the middle class, are very unpopular in America and so they couldn’t get the votes to do that. Nevertheless, notwithstanding all of that evidence, all of those legal facts, the chief justice said we’re going to treat this as if it were a tax, and we’re going to uphold it.

Jeffrey: Now, you point out a very interesting subtlety in your book that there are people who are exempt from the penalty, but not from the mandate.

Lee: Yes.

Jeffrey: So, it’s not a tax on the mandate.

Lee: Correct.

Jeffrey: It is impossible to say that given the simple language of the law.

Lee: That’s right. That was an inconvenient truth for the chief justice, and so the chief justice basically left it alone and he proceeded forward having essentially rewritten Obamacare in order to save it, because it was unconstitutional the way it was written. It was written as a penalty. He had already acknowledged the only way to pass this as a penalty would be through the Commerce Clause, which was what Congress invoked and that was unconstitutional. So he rewrote it in order to call it a tax, in order to save it.

Jeffrey: Now we’ve talked about the way the Commerce Clause evolved. The clause of the Constitution that John Roberts eventually ended up justifying the mandate on the Taxing Clause, sometimes called the General Welfare Clause, says that Congress can impose taxes, or levies, or excises in order to provide for the common defense and general welfare of the United States. But is it not true that for much of the history of the republic that was interpreted to mean, and the Founding Fathers said it meant, that they must do that within the enumerated powers of the federal government? They couldn’t, in other words, tax people to do something that was outside the powers given to the federal government?

Lee: Yes, and I believe the correct reading of the Spending Clause. I refuse to call it the General Welfare Clause. I believe the general welfare language is there to modify the Spending Clause. To say that Congress may spend money that it collects, but it must spend that money in ways that benefit the country as a whole. It can’t fund distinct parochial interests. But I believe the understanding at the time it was adopted was that Congress would not be given power to spend on whatever it wanted to. It needed to spend money on those areas that were separately enumerated, elsewhere in Article 1, Section 8, or where else in the Constitution.

Jeffrey: And this is something James Madison, for example, who was there and helped write the Constitution, wrote in Federalist 45.

Lee: That’s right. James Madison took this view. Alexander Hamilton is alleged to have taken the opposite view. I think the historians who make that characterization of Hamilton’s position are oversimplifying his position, but that is nonetheless--

Jeffrey: That’s in his Report on Manufactures, he tries to make that argument.

Lee: Exactly.

Jeffrey: But Thomas Jefferson, of course, took the Madisonian view. Was it not true that one of the reasons Madison wrote Federalist 45 was because some people looked at the General Welfare Clause and the Necessary and Proper Clause at the end of Article 1, Section 8--People like George Mason, for example, Patrick Henry in Virginia--but people in all of the states said we’re worried here that there might be a general power given to the federal government and we want to make clear that the powers that are not stated here are reserved to the states.

Lee: That’s right, and that’s why Madison wrote Federalist 45, and that’s why he explained in Federalist 45 that the powers given to Congress under the Constitution were few and defined, while those reserved to the states were numerous and indefinite. It’s understandable why Gorge Mason and others had concerns. We had just thrown off a big national government based in London that taxed us too much, regulated us too heavy, was so distant from the people it was slow to respond to their needs. Needless to say, they were leery of big national governments with no limits around their authority. They were not about to jeopardize the republic, the then-young republic, to another national government that could become a tyrant even if by degrees.

Jeffrey: And Virginia and other states said we want a Bill of Rights that will include what the 10th Amendment ended up saying.

Lee: Exactly. The 10th Amendment, the substance of the 10th Amendment is implicit in the text of the original Constitution. But once we added the 10th Amendment, we made explicit what was already implicit in the main text. And that is that there is no more, we have enumerated the powers that Congress has. It may operate with some latitude within those powers and around those powers, but outside of those powers, Congress has no power. The power belongs to the states or to the people.

Jeffrey: So, the understanding of the Founding Fathers, and for decades after that, was that Congress could not use its taxing power to usurp a power to the federal government that was not already granted to it by the Constitution.

Lee: It certainly could not use its spending power. We’re talking here primarily about the spending power, but, yeah, that’s basically true.

Jeffrey: And that also started to change in the 1930’s under Franklin Roosevelt.

Lee: Yes. It all started to change around the mid 1930’s, primarily with a case called United States v. Butler, where the Supreme Court identified what they characterized the Madisonian position on the one hand, and the Hamiltonian position on the other hand, which I think they oversimplified. And then they very hastily said we’re going to embrace the Hamiltonian position with very little, almost no, explanation as to why.

Jeffrey: And what was the name of the justice who wrote that opinion?

Lee: Roberts. Justice Roberts.

Jeffrey: Owen G. Roberts.

Lee: Owen G. Roberts.

Jeffrey: And that particular opinion opening up the use of spending tax power for broader federal use, engendered the welfare state. Is it not true that in order to create a federal welfare state you need to open that door?

Lee: That’s right. That’s right. This was one of the tools used by the Roosevelt administration, FDR administration, in order to expand the federal government’s power, because especially early on, you had the Supreme Court still being restrictive on the Commerce Clause, during most of the first two terms of the Roosevelt administration. And so some people came up with the idea: Hey, let’s try a few things under the Spending Clause instead of the Commerce Clause and that started to work for them.

Jeffrey: Right. For example, Railroad Retirement Board v. Alton, they decided that you couldn’t use the Commerce Clause to force sort of a Social Security program on the railroad industry based on the Commerce Clause, but they turned that around with the general welfare. So, you suggest in your book that Chief Justice Roberts--like Owen G. Roberts in the 1930’s--Chief Justice John Roberts today is opening yet a new door to federal power. You call NFIB v. Sibelius, which is the Obamacare case, a “coup d’ court.” What exactly to you mean by that?

Lee: What I mean by that is that we have important parameters set by the Constitution, we have limitations on power. We have horizontal limitations on power that distributes power between the legislative branch, which makes the law, the executive branch, which enforces the law, and the judicial, which interprets the law. We also have a vertical restriction on power: federalism. Most powers are reserved to the states or to the people. But some powers, a few of them, are given to Congress, to the federal government.

And, so, in this case what Chief Justice Roberts did was to weaken both the vertical limitation on power and the horizontal limit on power. He legislated from the bench. He amended this law, not just once, but twice. First, in saving the individual mandate by calling what was written and enacted as a penalty a “tax” to save it from an inevitable finding of unconstitutionality. He did it again when he rewrote the Medicaid expansion provision to give the states an opt out, even though Congress gave the states no opt out in the text that it passed and that the president signed into law.

So, he set this precedent that it’s okay now for the court to step in and rewrite it. We’re not talking here about looking between two alternative, equally plausible interpretations of ambiguous text. We’re talking here about language that, as enacted by Congress in two separate instances, was unconstitutional. And he rewrote it, not just once but twice to save it. That is very dangerous.

Jeffrey: Right. So even if you accepted Chief Justice Robert’s argument that the Taxing Clause could be justified to enforce commanding people to buy health insurance. The correct procedure would have been for him to strike down the law and say in his opinion that was the case. Maybe this could have been justified by the Taxing Clause, but not by the Commerce Clause (and not as a penalty under the Commerce Clause) and sent it back to the Congress, see if Congress wanted to write and enact a law that would do that.

Lee: That’s exactly right. That is Congress’ prerogative to decide whether or not, or to what extent, or in what form to rewrite a statute or a statutory provision that’s been found unconstitutional. He denied Congress that opportunity by rewriting it himself, not just once, but twice, and that was wrong.

And this obliterated this distinction, this horizontal restriction on power because it dramatically blurred the distinction between judicial power and legislative power. And in doing that, he simultaneously blurred the distinction between federal power and state power because he’s paving a road for a dramatic new expansion of federal authority.

Jeffrey: Exactly. Now, senator, as I mentioned, you were a clerk to Justice Alito on the Supreme Court and you mentioned in your book how when this decision was announced, the clerks came in and they sat in the place in the chamber where they get to hear the decision. Now they, of course, knew what happened. You also point out in your book that there’s a strict confidentiality that’s maintained there that isn’t broken. The people who work as clerks on the court do not speak about what goes on in particular cases outside the court. But given your understanding of how the court works, can you tell us how would, in general terms, how would an opinion like this be processed? I mean, how would they get to having put out an opinion like this?

Lee: Okay, so the way it normally works is shortly after the argument, maybe a day or two after an argument depending on when it finishes in the week--in this case, it would have likely been the Friday following the completion of oral arguments which had been going on all week that week--the justices, all nine of them, meet in a conference room. There are no clerks there, there are no secretaries, just the nine justices. They go around the room in order of seniority, starting with the chief justice and then going down to the most junior justice at the end. Each justice will take just a few minutes and explain his or her views on how the case ought to be decided. That’s what they call the vote, or the first vote. That’s where they decide initially where they’re going.

According to the press report, there were multiple press accounts based on some very rare leaks, suggesting that at that conference the chief justice sided with the four conservatives who ended up being the dissenters, and they were going to be a 5-to-4 majority. But that at some point, between the initial vote at that conference and the announcement on June 28, 2012, the chief justice switched his vote.

So by that time, there would have been opinions circulating, or at least opinions drafted. And it’s not clear exactly who was drafting what. Some have suggested that perhaps the chief justice was going to be drafting the majority opinion and so perhaps at that point he scrapped what he was writing--which might explain why you had an unsigned four-member dissent that was written in several segments and no single justice was assigned the task of being the named author of that opinion. They may have had to do it on short notice.

Jeffrey: And the idea that Roberts switched his vote sounds plausible to you based on your experience?

Lee: It sounds plausible to me--especially given the way what became the dissent was written. It appears that they put it together relatively quickly. It refers to arguments that the government makes rather than arguments or conclusions that the majority reaches in many, many instances. It reads like something that could have been drafted initially under the hope or expectation that it was going to be the majority opinion and then they had to switch it on relatively short notice. That could mean a few weeks, a few days, I really don’t’ know.

Jeffrey: Given that they make that initial vote just a few days after the oral argument, is it true that the justices would generally do a great deal of due diligence before the oral arguments? They would have read the briefs; of course, they are familiar with the precedents and the basic laws, the issues here. Would it be fair to say that they really had a pretty solid understanding of not just the facts, but the constitutional framework in which this needed to be decided?

Lee: Definitely, yes. By the time they get to conference following oral argument, they’ve thought it through extensively. They’ve read through all of the briefs submitted by the parties. In many instances, they have read dozens or scores of amicus briefs; most of them have read what are called bench memorandums prepared by their law clerks attempting to summarize and synthesize all the arguments made and making a recommendation. And they’ve done a lot of thinking about the case as well.

It’s very unusual from what I saw as a law clerk for any justice to change his or her vote after conference, between the time of the conference following oral argument and the time the decision issues. It does happen, but it is quite rare.

Jeffrey: Now, Justice John Roberts is clearly a brilliant man. He graduated from Harvard Law School. He was a very sought-after lawyer at one point in his life. He was on the D.C. Circuit Court of Appeals. But this opinion is so obviously intellectually incoherent and untenable given the explanation that you gave. He called it a penalty and then he turned around and called it a tax and then he essentially rewrote the law. Why would Justice Roberts, such a smart person, have written such an intellectually unjustifiable opinion?

Lee: As I acknowledge at the outset of my book, I don’t know the answer to that question. I think that Chief Justice Roberts might be the only one who really knows. Justices generally don’t opine beyond the four corners of their opinion. But I do make some guesses, some educated guesses, in my book as to why it might have happened. One of my theories is that he received a lot of pressure from a lot of people who were saying, basically: You don’t want this to be part of your legacy as the chief justice of the United States.

Jeffrey: Who would those people be?

Lee: There were members of the Senate, who I overheard at the time of oral argument and who I heard on the floor of the Senate in the weeks following oral argument, repeating back essentially the same message over and over again, saying: Chief Justice Roberts really should not want this as a stain on his legacy.

Jeffrey: These were public declarations?

Lee: Yes, yes. Initially they were private. I overheard some of my colleagues talking about them the week of oral argument and then a few weeks later they started making these statements on the Senate floor. Similar statements were made by the president and by White House personnel in the weeks following oral argument and leading up to the decision. They were all saying, basically: Chief Justice Roberts doesn’t want to be an activist. He doesn’t want to go down in history as the activist who undid President Obama’s signature legislative accomplishment.

Jeffrey: But he has lifetime tenure on the court and the intellectual inconsistencies of this opinion are so screamingly apparent that he will now go down in history as someone who wrote an intellectually and unconstitutionally unjustifiable opinion that radically expanded the power of the federal government. I don’t understand why John Roberts wouldn’t have been sensible to that and keen enough to understand that that would be his legacy.

Lee: As difficult as it is to imagine that, just consider the fact that immediately after this decision was issued, there was overwhelming praise from the White House, from Senate Democrats, from House Democrats, from media establishments around the country, from political pundits--political pundits, believe it or not, on the left and on the right--who called this a brilliant move, who called this an ecumenical decision. It was a magnanimous attempt to reach across the aisle--setting aside, of course, the fact that there is no aisle on the bench in the Supreme Court; setting aside, of course, that this is not a political body. The partisan affiliation of their appointing president becomes irrelevant the moment they’re sworn into office and it is supposed to. It is part of their oath that they not take into account external considerations.

Jeffrey: But you believe that the combined voice of the political establishment and the mainstream media establishment were forceful enough to possibly change the opinion of Justice Roberts?

Lee: That’s my belief. And it my have motivated him on the basis of praise, it might have motivated him on the basis that he was able to avoid a lot of that criticism. It might have had something to do with the fact that he became convinced, perhaps, that the court’s institutional creditability would somehow be damaged if it were seen as an activist court. But, as I point out in the book, that notion of activism is misunderstood. It is equally bad for a court to uphold an unconstitutional act of Congress as it is for a court to invalidate an act of Congress that is not in fact unconstitutional.

Jeffrey: All right, you make a very clear and powerful argument for how Chief Justice Roberts rewrote the Patient Protection and Affordable Care Act in these two ways in order to maintain it. Last week, two days before the Fourth of July, when Congress was out of session, an assistant secretary of the treasury posted a blog saying that the administration simply was not going to enforce the employer mandate, which is in the Patient Protection and Affordable Care Act, next year.

Now, I looked into the law, actually pulled up the actual language of the law, and it says the following: “The amendments made by this section shall apply to periods beginning after December 31, 2013.” That exact language, word for word, is at the end of the individual mandate—so this mandate that John Roberts held up, it says those exact words--and it’s at the end of the employer mandate, says those exact words. When Congress enacts a law that says it “shall apply to periods beginning after December 31, 2013” and the president signs that law and the Supreme Court of the United States upholds that law as constitutional, does the president of the United States have the discretion simply not to enforce that law on some interests?

Lee: No. No, he doesn’t. He doesn’t have that authority under the statute. The statute is utterly inconstant with that. And with this kind of statute, where it specifies the date it shall take effect, which was three and a half years after its enactment, that’s the date on which it’s supposed to be implemented. He doesn’t have constitutional authority or statutory authority to do this.

Look, this kind of development is exactly the reason why I wrote “Why John Robert’s Was Wrong About Healthcare.” I wanted to highlight to the American people and make it easy for the non-lawyer audience out there to understand what really happened in that case, which was that a branch of government not given legislative power grabbed a piece of legislation, rewrote it not just once but twice in order to save it, in order to guarantee it would in fact be implemented.

Having set that predicate, the branch of government that calls itself chiefly responsible for overseeing constitutionality, they made it okay now for the executive branch to rewrite it as well. And the executive branch now has rewritten Obamacare on at least two occasions. Once, early in the first week of July, when it said it would not be enforcing the employer mandate, at least not for the first year after it was supposed to take effect; and then later that first week of July, when the Obama administration said that it would not be enforcing those provisions of Obamacare requiring income verification for those going on to the exchanges and receiving subsidies from the federal government.

It’s now a different law. It’s been rewritten at least four times, twice by the Supreme Court and twice by the Obama administration, and that’s not okay. That’s the whole reason I wrote this book, is to point out there is a reason why we have elected officials in Congress in charge of making law. It’s not because we’re smart. It’s not because we necessarily are the wisest in the land. It’s because we are accountable, because we stand for reelection.

Jeffrey: Senator Lee, the Constitution requires the president when he is inaugurated to take an oath or an affirmation in which he says he will “preserve, protect and defend the Constitution of the United States.” Article 2, Section 3 of the Constitution says he “shall take care that the laws be faithfully executed.” Given his sworn duty to take care that the laws shall be faithfully executed, did the president have a constitutional duty to enforce this law as of December 31, 2013?

Lee: Well, yes, I think he did, and if he came to the point, which he apparently did, where he said this just isn’t possible, it isn’t plausible, I can’t do it, then it is his duty to come back to Congress and say: Okay look, as a practical matter, I can’t do this. Let’s work something out. Let’s change the law so we can be in compliance with the law.

Jeffrey: So let’s amend the law. But by refusing to enforce the law he himself signed, that has a direct mandate, he is violating his oath and he is violating Article 2, Section 3 of the Constitution.

Lee: Yeah, I think that’s right. And that problem is compounded even further when he rewrites it, and he says: I am now going to decide how I am going to enforce this. I’m going to enforce these provisions selectively. I’ll enforce those provisions that I want to enforce, but won’t enforce those provisions that I think are either impossible to implement or, more likely, provisions that if enforced would cause political harm to my political party. That’s what happened here and that’s why there are appropriate ways for Congress to deal with this problem.

Jeffrey: Now is there a constitutional issue with the fact that he is enforcing the individual mandate on December 31, 2013, as the law says, so that every individual out there must follow the law, but he’s not enforcing it on businesses? Is that an unequal enforcement of the law?

Lee: Without question it is. So, hardworking Americans, people who are living paycheck to paycheck just trying to get by, are going to be penalized if during the year 2014 they don’t buy health insurance. Not just any health insurance, but the kind of health insurance that Congress, in its infinite wisdom, said every American had to buy under penalty of law. Meanwhile, employers, who were given a corresponding mandate to provide insurance for their employees, if they have met the size requirements and so forth, will not be subject to that same requirement. So the administration is doing a big favor to big corporate cronies while throwing individuals to the wolves, and saying: You’ve got to comply with this law or you’re going to be punished.

Jeffrey: Is there a constitutional issue there, due process or equal protection, or is that oaky?

Lee: There is a constitutional problem with it. I’m not sure that I would call it an equal protection problem or a due process problem. I’d have to think that through. But there definitely is a constitutional problem because we’ve got selective enforcement of the provisions of a law in an unequal fashion. And that is a problem, and it is a problem that Congress has some authority to respond to and, I believe, Congress has a solemn obligation to respond to it.

Jeffrey: Given that, in at least deciding not to enforce the actual letter of the law in terms of the employer mandate, the president is violating the Constitution and the letter of the law, what is the remedy to that?

Lee: The remedy is for Congress to refuse to fund the implementation of the program that the president insists is not ready to be implemented. Look, the American people are being told you’ve got to comply even though the big corporations don’t have to. You’ve got to do this or you’ll be punished, but if they don’t do what they are supposed to do under the law, nothing will happen to them.

So, Congress has not only the authority, but a solemn obligation in this circumstance to say if the law’s not ready to be implemented and enforced as it was written, the American people shouldn’t be paying to have it implemented and enforced, not at all. It would be irresponsible at this point for Congress to pass any appropriations measure and any continuing resolution that would contain funding for the ongoing further enforcement and implementation of Obamacare as long as these conditions remain in place.

Jeffrey: Alright. There’s at least two must-pass pieces of legislation coming up in Congress over the next few months. One will be the legislation to extend, to increase the debt limit of the United States. The other will be whatever bill’s passed to fund the government into fiscal 2014, probably a CR. As you know, there’s no possibility of any of those, of either bill being passed without the Republican-controlled House of Representatives approving it and sending it to the Senate. Are you recommending that the House of Representatives attach language to one of those two must-pass pieces of legislation defunding Obamacare?

Lee: Yes. I’m recommending exactly that and I’m drafting an amendment for the Senate to attach a continuing resolution here. Republicans in the Senate and Republicans in the House need to stand on this issue, need to refuse to budge, because we will be complicit in Obamacare, we will be responsible for what happens to the country with Obamacare as the government selectively enforces this law as the administration has now rewritten it, if we thereafter provide funding for the administration to do that.

Jeffrey: So that people understand this in practical terms: The fiscal year ends on September 30. The current CR funds the government through September 30. As of October 1, at this moment, there is no legal authority for the Obama administration to spend a penny.

Lee: That’s right.

Jeffrey: And in order for the Obama administration to spend a penny on anything that the government does as of October 1, John Boehner’s House of Representatives with a Republican majority must pass legislation to make that happen.

Lee: That’s right.

Jeffrey: And you’re saying that that legislation should include language that defunds Obamacare, period.

Lee: Yes.

Jeffrey: If the House passes that, it comes here to the Senate. And you will fight for that in the Senate, correct?

Lee: Absolutely.

Jeffrey: But it’s unlikely to pass the Senate in the first instance.

Lee: Well, I’m not willing to say anything is unlikely. I can understand why some Democrats might not like it if it doesn’t fund Obamacare, but if they’re listening to their constituents, if they’re like Max Baucus from Montana who helped write this law, but was heard saying recently this thing is going to be a train wreck--referring to Obamacare’s implementation--then they’ll recognize that the law is, as the administration itself has acknowledged repeatedly, not ready to be implemented as written. And if it’s not ready to be implemented as written, we have no business funding the Obama administration in implementing it selectively.

Jeffrey: And if the House Republican leadership takes your strategy and they pass legislation to fund the government that defunds Obamacare, there’s no doubt there will be a massive national debate early this fall in September, perhaps early October, over whether or not Harry Reid and President Obama decide to shut down the federal government because they’re unwilling to sign a bill that defunds Obamacare.

Lee: Right. And I want to make very clear: There’s no need to shut down the government here. I don’t want a government shutdown, and I don’t think we have to have one. It would be most unfortunate if those who were trying to push this law through, this law that has now been written a total of four times--twice by the court, twice by the Obama administration--it would be unfortunate if those who just want this bill to kick in no matter what, were willing to force a shutdown simply because they couldn’t bring themselves to acknowledge that this law is not ready to be implemented.

Jeffrey: Right. So, the House of Representatives will have passed a bill to fund the government, just not Obamacare. It will then be Harry Reid’s Democratic-majority Senate that will decide whether or not to pass a bill funding the government and moving it forward.

Lee: That’s right, and it would be most unfortunate if they refused to keep the rest of the government functioning just because they’re so insistent on the Obama administration having all the funds it wants to be able to selectively enforce this provision.

Jeffrey: But then it becomes a standoff, doesn’t it? I mean, if the House Republican leadership actually does what you want and sends that bill over to the Senate, either Harry Reid decides he’s going to shut down the government to make sure that Obamacare is funded in the next year, or John Boehner’s going to say: I’m to worried about it. And he backs off.  One of those two people are going to back off, correct?

Lee: Presumably, yes, if it proceeds in that fashion. And at that moment, I know what the American people are going to say.  The American people are going to say: Keep the rest of the government functioning. Don’t shut down the government. Look, this Obamacare law is one that has become less popular over time. Americans were mixed about it at best at the time it was passed. It has not ripened in a way that has made it more appetizing. It has become less palatable rather than more over time.

Jeffrey: And if the Republican leaders in the House cave on that instead of Harry Reid and Barack Obama, then they would be funding a bill--funding Obamacare--so that Obama could say on January 1: You, the individual, you must obey Obamacare, but you, multi-billion-dollar businesses, you don’t have to obey Obamacare.

Lee: That’s exactly right, and no Republican, no American who is concerned about individual liberty, no American who is concerned about all the horrible things that Obamacare is going to do to our economy, would ever want that taint.  No one would want to be complicit in that, which is exactly why the House must refuse to fund Obamacare.

I mean, look, since Republicans took control of the House of Representatives following the 2010 elections in 2011, we’ve had several continuing resolutions passed. In those continuing resolutions, Obamacare funding has remained intact. Some aspects of it have been curtailed or cut, but for the most part there haven’t been across-the-board restrictions on Obamacare implementation. There were a lot of reasons for that. I think at the time, there were a lot of people who were hoping that the 2012 election cycle would bring about the election of a Republican president and full repeal of Obamacare would then be imminent. But that didn’t pan out that way.

The continuing resolution debate that we will have in the days leading up to September 30 of this year will represent the first time that we have been asked to vote to fund the ongoing operations of government since Mitt Romney lost the presidential election in 2012. And it’s also the last moment, most likely, when we’ll have the opportunity to fund the operations of government before Obamacare kicks in.

This is the moment. This is the moment when Americans stand together and say: We don’t want this. This is not a good law. It’s been rewritten now at least four times and it has become less popular rather than more over time. The Obama administration is about to enforce its provisions selectively, to the detriment of hard-working Americans and for the benefit of corporate fat-cats, and that’s a problem, and we’re not willing to fund it.’

Jeffrey: Senator Mike Lee of Utah, thank you very much.

Lee: Thank you