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-- -- -- we damn well better -- how do we fix the constitution.
Now that yet again it's been abused.
Now that yet again eight provision of the constitution.
Has been used -- used.
A government program.
That is a direct assault on the individual.
Had -- we -- that new justices mark really.
You may -- Roberts.
You mean like Souter.
You -- like John Paul Stephens.
And I could go down the list.
Well that was conservative radio host mark -- on the impact of last week's health care ruling.
And now despite some conservatives.
Praising the decision for allegedly limiting the government's power to regulate you under the commerce clause of the constitution.
There are new questions about whether this decision actually expands the Fed's power over your life under the taxation powers of the constitution.
Joining me now Republican senator Mike Lee -- -- former law clerk for now Supreme Court justice Samuel Alito senator welcome back to the program.
And that is that that is the position there is a -- now among conservative some defending chief Justice Roberts saying.
Well even though -- senate with a four liberals he did write an opinion that that refused to expand commerce clause powers.
But folks like have been another saying you're looking at the wrong sections of the opinion because -- you look at what the court actually held actually held.
It is basically at an expansive power without limits.
Under the taxation powers of the cost of -- of the congress.
That's exactly right -- and that's why it's concerning to so many people who love liberty in America.
People who understand that the government exists to serve the people and not the other way around.
This is yet another example of the Supreme Court facilitating the unfettered expansion of congress' power.
Congress was as you remember -- supposed to be a legislative body.
With powers that are few and defined not numerous and indefinite the modern Supreme Court has flipped that on its head.
And we've got to rain this and now we've got to do it for the political process by electing a new government a new set -- men and women who recognize restraints on congress has.
Our how I mean it how -- -- -- expand congress has power to tax us I mean that the justice chief Justice Roberts.
According to his critics who redefined.
In a way we haven't seen before in -- to find a way to uphold this law.
It can that now be used by people like you who -- in congress against DOS you know to find other ways to tax us.
Because the courts don't you can't regulate people's behavior under the commerce clause peoples in activity can't you can't make somebody sitting on the -- do something.
Under the commerce clause but then then then thanks to chief Justice Roberts is said but you can't tax them for not doing.
Yes that's right and thanks to Chief Justice roberts' opinion.
This is now what we face and that's exactly why this puts this question back into the hands of the people when they go to the polls this November.
The people have to decide what kind of government they want what we've seen what kind of government we don't want the people need to go to the polls and say.
This is the kind of government we want we want the government that doesn't compel individual behavior.
By passing up penalty and then allowing a court later to -- it only as attacks.
I was hoping that the Supreme Court would do its job of restricting federal power he didn't do its job now we've got to rely on the political process in order to fix this problem.
Jan Crawford Greenburg -- is an excellent Supreme Court reporter and his -- for different number different news agencies now CBS news reports based on two sources close to the High Court.
That that the conservatives had Roberts he was on their side that there were five justices poised to strike down this lot this mandate and -- of the five.
Not including Roberts were prepared throughout the law entirely.
Then she says as time went on Roberts let Annie went over with the liberal wing not on the commerce clause but -- uphold the -- as attacks.
Struggling mightily to find some way to uphold that the suggestion by some is that that was in response to the enormous public pressure.
That was put on the High Court not to strike down the president's signature legislative achievement and -- points on -- the chief Justice Roberts is known for paying attention.
To the media unlike some of the other justices.
Is it possible in your view senator that president Obama's public criticism of the court before.
They had the ruling that the criticism by many on the left who supported this health care law.
May have actually gotten to the chief just this.
You know I try not to get into anyone else's head and speak for them for what they intended I can't know what Chief Justice Robert.
Did or why he did it -- but what I do know.
Is that this opinion is written in a way that supports what Jan Crawford suggested.
Now -- Jan Crawford is usually right I think she was here based on the way it was written.
Had several hallmark indicators suggesting that it was originally going to be the majority opinion the fact that it wasn't signed.
By any one single justice -- usual defected at referred to beat Ginsburg's dissent as a dissent rather than a concurring opinion which it in fact was.
All these things together with the overall tone and tenor with which it was written strongly suggesting that Jan Crawford is right and that this was supposed to be a majority opinion and they lost the fifth.
I gotta -- but I want to ask you quickly is a former Alito clerk.
Do you think there was shock among the other conservative justices that they lost the Chief Justice on a case like this.
I strongly suspect that there was shocked just like there was shock among conservatives and Americans generally.
John Roberts was man who had a long track record of being an advocate of federalism.
And then he issued this opinion that shocked us all because this was not a decision that is friendly to -- and this was not freely to the rule of law right and I think it was wrong.
We're gonna talk about it mourn our next hour this this Crawford Greenburg report which is really explosive senator thank you think you.
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