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-To this day, many are still debating why Chief Justice John Roberts found that the Affordable Care Act meets constitutional Muster.
Senator Mike Lee has a new book out explaining the decision and his opinion of it in plain English.
I sat down with him to talk about why he thinks the chief got it wrong.
-Chief Justice Roberts rewrote Obamacare, not just once but twice, in order to save it.
There were two defects in this law that made it unconstitutional.
Either one of them would have sunk the whole text of the bill, and yet, he chose to rewrite it rather than to invalidate it.
And that's not his job, that's the job of congress.
-Well, you've talked about this in the book, and I know from sources inside the court that he did originally vote with the folks who ended up in the dissent.
He did change his mind not long before the decision came out.
Why do you think he changed his mind? Was he adhering to the law? Was there external pressure? What happened? -As I explain in the book, no one other than John Roberts can tell us that and since justices normally confine their explanations to the four corners of their opinions, he's not gonna tell us, but I do go through the various theories.
Some of them involved things like, a desire perhaps to protect the institutional credibility of the court or perhaps to protect what he perceived as his own long-term legacy as chief justice.
But for reasons I explain in why Chief Justice Roberts was wrong about health care, I think that none of those explanations can stand up to scrutiny in the sense that none of them justify him doing what he did here, which is rewriting the law not just once but twice in order to save it.
-What's the broader implication [unk] justice particular opinion on important constitutional matters like separation of power, those kinds of things? -The broader implication here is that we've got a big problem.
This book helps explain why, for reasons that have nothing to do with Obamacare but are exemplified by this case, Americans are to be concerned about the fact that we've got three different branches in the federal government now making law and it's supposed to be the job of congress, the legislative branch, but you also have a lot of lawmaking that's being done in the executive branch pursuant to broad delegations of authority by statutes like Obamacare.
And here, you've got even the judicial branch, the Supreme Court, writing law.
The problem with that, as I explain in the book, is that only people in congress are accountable for making laws and that people in congress who stand for election at regular intervals, two years in the case of the house, six years in the case of the senate, and respond to the people standing accountable for their actions.
-We also now have-- Looking forward, there are new parts of the law that are gonna be implemented that are rolling out over the next few months.
We have a couple of reports from the nonpartisan Government Accountability Office talking about how far behind schedule the states are and different various parts of, you know, this law are going to be behind and the costs are proving to be different than predicted.
So, now, that it's turning into reality, what are the options? -Well, I think the options involved and necessarily still include full repeal.
That's gonna be difficult to achieve, of course, in the senate that's controlled by the president's party, but we still need to have these discussions.
I've got a separate bill that I explain in the book, Senate Bill 560.
It's very simple.
It's a one-page antidote to the 2700-page monstrosity that is Obamacare.
And here's what this would say, that the individual mandate provision of the Affordable Care Act is hereby amended as follows.
Nothing in the section shall be construed as a tax or as an exercise of congress' power to tax.
If we just enacted that, if that became law, we would just be confirming what democrats in both houses of congress and in the White House have been saying, which is that this is a penalty, not a tax.
If we confirm that, then we would undo Chief Justice Robert's rewrite of the law and the whole thing would collapse under its own weight.
-[unk] colleagues join you on that and certainly when it lands on the president's desk at the White House.
Is it more about making them make a public statement about where they stand on that issue versus actually getting something like that passed? -Yeah, look, Rome wasn't built in a day and I have no delusions about this passing overnight, but I'm going to continue to push this nevertheless because we need to have this discussion.
Those who continue to insist that it's a penalty and not a tax have to find a way to reconcile that with what the Supreme Court did and the fact that the law as enacted by congress no longer exists.
It's been rewritten in a way that makes the bill more problematic as a result of what the Supreme Court did.
And that's why I wrote Why John Roberts Was Wrong About Health Care.
-Like I mentioned, for those who wanna know more about the decision, the opinion, and how it came together, what it really means, you've made it very readable and understandable.
So, great book and we wish you all the best with it.
-Thank you, Shannon.
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