Constitutional Neglect

“Are you serious?” That’s how Nancy Pelosi responded when a reporter asked her where the Constitution authorized Congress to order Americans to buy health insurance.

Sadly, neglecting the Constitution (or dismissing it outright) is all too common in Washington—among Democrats and Republicans, politicians and judges alike. Senator Mike Lee shines a light on the problem in this excerpt from his brand-new e-book Why John Roberts Was Wrong about Healthcare (Threshold Editions). Using the Supreme Court’s Obamacare decision as a case study, Senator Lee calls on Americans to “restore and preserve the constitutional protections that have been overlooked far too long.”

My day started early on Thursday, June 28, 2012. I had scheduled a series of news-media interviews, which began at about 7:00 a.m., and would last throughout the day. By late morning, the U.S. Supreme Court would be issuing its ruling in a landmark case involving the constitutionality of President Obama’s defining legislative accomplishment, the Patient Protection and Affordable Care Act of 2010 (ACA), known to many as Obamacare.

It was rare to see such intense media interest in a single case pending before the Supreme Court. This case was different.

Having served as a law clerk to Justice Samuel Alito (first while he was serving on the U.S. Court of Appeals for the Third Circuit, and then again during his first full term on the Supreme Court), I knew that it is often difficult to predict how the Court might rule. But I also knew that in some instances, you can make a pretty good guess as to how each justice might vote if you know what to look for.

I also knew that I would need to rely on a time-proven strategy I had learned from my dad decades earlier. My father, the late Rex E. Lee, served as President Reagan’s solicitor general and argued fifty-nine cases before the Supreme Court during his career. My dad used to say, “When trying to predict how the Supreme Court might rule, the formula is simple, but not always easy: Count to five.”

At the conclusion of the four-day oral argument in late March 2012, I had felt quite confident that I could count to five in the Obamacare case. I predicted that Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito would likely find the ACA unconstitutional at least in part, and perhaps in its entirety.

Arguments lead to decisions. The ruling in this case was announced on June 28, the final day of the Court’s October 2011 term. That morning, I took my seat in the courtroom. I couldn’t help but think about the countless times I had sat in the same room—not just as a law clerk and lawyer, but beginning at the age of ten, when I started attending my dad’s arguments before the Supreme Court.

There is a carved marble frieze above the bench on the courtroom’s east wall. It has captured my attention on countless occasions. The frieze features two men seated in what appear to be thrones with a large eagle behind them, wings outstretched. The man on the left, who has a large book of law at his side, is known within the Supreme Court as “the Majesty of Law.” The man on the right holds a large fasces—an ancient Roman symbol of authority consisting of a tightly bound bundle of rods—and is known as “the Power of Government.” Both men appear unusually but equally strong, sending the message that each is capable of keeping the other in check, and that when the two are united, they constitute a formidable force.

Corresponding friezes, one on the north wall and the other on the south, depict a long line of ancient lawgivers, including Moses, Hammurabi, Solomon, and King John. A final frieze on the west wall contains carved figures representing the conflict between good and evil: Virtue, charity, peace, harmony, and security are depicted on one side, and vice, crime, corruption, slander, deception, and despotic power on the other. The evil side conjures a feeling of chaos, while the good side creates an impression of order.

Taken together, the friezes seem to hold the law, and with it the history of civilization, in balance. Much like the stone figures in the courtroom, I was surrounded by witnesses of the legal landscape, guardians of the proper role of government. Aided by my surroundings, I became keenly aware of each generation’s role in maintaining the rule of law.

The Judgment of Solomon

At the appointed hour of 10:00 a.m., the clock and gavel operated in near-perfect unison. Right at the top of the hour, I heard the familiar pound of the gavel, followed by the traditional incantation by the marshal signaling that the Court was in session: “All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” I hoped that 300 million Americans, all of whom were “persons having business before” the Court that day, could find some way to “draw near and give their attention.”

True to form, all nine justices took their seats and began announcing the rulings in each of the cases remaining from the Court’s October 2011 term. The decision involving the ACA was last on the docket. Chief Justice Roberts began reading his prepared synopsis of the opinion—indicating that he was in the majority and had assigned to himself the task of writing the opinion.

The excitement among conservatives in the room was almost palpable as the Chief Justice began explaining why the Constitution’s Commerce Clause could not be used to justify the ACA’s “individual mandate” provision, which requires individuals to purchase health insurance and subjects them to a significant penalty if they fail to do so. Then the wind began to blow in a different direction, and the sails of conservatives went flat.

Turning to the Obama administration’s backup argument, Chief Justice Roberts explained that, while the ACA’s individual mandate could not be upheld under the Commerce Clause, it would be upheld as a valid exercise of Congress’s power to tax. Thee Court’s decision to uphold the mandate as a tax was a deflating blow to conservatives, who had counted on the Court to rein in what many perceived as a gross excess of federal power.

The Chief Justice had sided with the Court’s liberals—Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Obama administration could now count to five.

Conservatives enjoyed another moment of bliss when Roberts explained that the ACA’s Medicaid-expansion provisions were unconstitutional as written. But that moment soon faded as it became apparent that the same five-member majority, led by Chief Justice Roberts, altered the plain meaning of those provisions by simply ordering the government not to follow the law as enacted by Congress. Announcing that it had cured the constitutional defect in the statutory text, the majority concluded that the Medicaid-expansion provisions, along with the rest of the ACA, could remain intact.

Much of this, especially the decision to uphold the mandate as a tax, was contrary to what many of us had expected from the Court. It was especially contrary to what we expected from and thought we knew about Chief Justice Roberts.

Shortly after I left the courtroom and began explaining the decision to reporters, the reality of the Roberts ruling started to set in. This decision had the feel of a severely botched Solomonic attempt to have it both ways—an ill-conceived split-the-baby strategy. Sometimes, when deciding an unusually high-profile and contentious case, a jurist will succumb to the impulse to give both sides part of what they want—not because the law and the facts require that result, but because the jurist (either consciously or otherwise) wants to appear evenhanded, and split-the-baby decisions will tend to inoculate the jurist from accusations of bias. To the extent such decisions are motivated principally by a desire to protect the reputation of the jurist, they rarely vindicate the rule of law and are often at odds with it.

Perhaps the Chief Justice had wanted to split the decision and allow both sides to leave the courtroom with at least part of what they wanted. Some observers quickly concluded that Roberts had done precisely that—not just once, but twice. First, Roberts enforced the limits of the Commerce Clause (an apparent nod to limited government), but went on to reimage and uphold it as a valid exercise of Congress’s power to tax (a clear victory for big government). Second, Roberts found that the Medicaid-expansion provisions were unconstitutional as written (an apparent nod to limited government), but went on to surgically repair the constitutional defect, altering the plain meaning of the statutory text in order to guarantee the survival of both the offending provisions and the ACA as a whole (a clear victory for big government).

Many observers accept that Roberts made a deliberate choice to split the ruling, and praise him specifically for doing so—not because they think the ruling was correct as a matter of law, but because it has the appearance of evenhandedness.

Praise of that sort is often premised on the assumption that a ruling that gives something to each side is itself inherently fair, wise, and fundamentally good, especially in a politically controversial case.

That kind of thinking ignores the fact that Solomon’s intention was never to make everyone happy. Nor was it his motivating desire to appear fair and evenhanded. Far removed from any legal doctrine or public-relations strategy, Solomon’s approach was a practical one designed solely to identify the baby’s true mother. Had Solomon actually taken the approach he initially suggested in what became his most famous case, neither party would have gone home satisfied. Nor would Solomon have gone down in history as an iconic jurist. Solomon’s wisdom stands the test of time because he used his authority not to placate, but to expose essential truth.

A Return to Constitutionalism?

In rewriting the ACA in order to save it—not just once, but twice—the Supreme Court significantly undermined two of the Constitution’s most fundamental principles: (1) that the power of the federal government is limited, and not open-ended, 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. That aspect of the Court’s ruling has prompted countless Americans to ask themselves and their elected representatives a number of questions. While such questions appear in many forms, they often resemble the following: Does the Supreme Court have the authority to rewrite laws it finds problematic? When the Court rewrites a law in order to save it, isn’t it creating a new law that was never passed by Congress? If even a minor amendment to an existing law must be passed by Congress and signed by the president, shouldn’t we be skeptical of a Supreme Court that bypasses that process altogether? What can Congress and the people do if it they don’t like the Court’s ruling? All of these questions share an underlying theme: They all indicate that the American people care deeply about constitutional authority.

It is time for a renewed national dialogue regarding the federal government’s limited role (“federalism”), and the distribution of authority among the federal government’s three branches (“separation of powers”). Both of these principles are essential ingredients in the Constitution’s organizational formula. Both have been neglected and severely undermined, so much so that many Americans are now beginning to notice. The Supreme Court’s ruling on the ACA provides us with a high-profile example of what can happen when we, as a society, disregard these principles.

Mike Lee is a U.S. senator from the state of Utah. He is the author of the new e-book Why John Roberts Was Wrong about Healthcare: A Conservative Critique of the Supreme Court’s Obamacare Ruling (Threshold Editions), from which this essay is adapted. Reprinted with the permission of Threshold Editions, a division of Simon & Schuster.