Sen. Mike Lee, Tea Party Caucus Member and Former Alito Clerk, Discusses Obamacare Ruling

Sen. Mike Lee (R-UT), in a conference call with conservative bloggers, gave his take on yesterday's Supreme Court ruling upholding Obamacare, and Republican plans in reseponse to the ruling.

Kentuckians may know that Lee is one of Sen. Rand Paul's favorite colleagues and with Paul a founding member of the Senate Tea Party Caucus.  In fact, Paul attributes his interest in the Federalist Society to Lee.

Lee clerked for then-Judge Samual Alito twice, once on the Third Circuit  later on the Supreme Court.

Drawing on that experience as a Supreme Court clerk, Lee said he "would not be surprised' to learn that Chief Justice John Roberts switched his vote at the last minute to uphold the statute.  "There are some signals in the opinion that something changed somwhere," he said, "probably late in the day."  He noted that the dissent refers to the "Ginsburg dissent" rather than "concurrance."  Further, he observed that the dissent "reads generally like a majority opinion." Lee cautioned that he cannot prove that this is so.

Lee's take on the Commerce Clause ruling was similar to what I wrote yesterday:  this limit on Congress' authority under the Commerce Clause -- only the third time in 75 years -- is historic.  "Our children and grand-children will study this."  In contrast, the holding on that the  individual mandate may survive as a tax is "a hollow and short-lived" victory for the Obama administration.

Lee called it "somewhat unprecedented" for the Court to rewrite the statute to save it.  The problem with the Court "shoe-horning" the statute under the taxing power, for the Obama administration, is that the individual mandate is "wildly unpopular," Lee said. "To put it mildly, the individual mandated's new status as a tax is not going to increase the American people's appetite for it."

Another "siliver lining" of the decision,  (in addition to the Commerce Clause ruling) is the holding on Medicaid, that Congress cannot coerce states into accepting new regulations by taking away prerviously-promised funds. Lee noted that this is the first time the doctrine from South Dakota v. Dole has been implemented to strike something down. 

Lee said he was "saddened" by the Supreme Court's failure to play its role as the "gatekeeper" of limited government.  "I didn't think it was a tax. Congress didn't think it was a tax.  The president assured it wasn't a tax."  But the Supreme Court said it was a tax in order to save it.

The only way to turn this into a victory, therefore, is to shift to a policical remedy.  He predicted that "this ruling will give us added momentum" to elect Republicans in November.

Lee had the same reaction as I did yesterday to the Court's remedy on the Medicaid provision's coerciveness:  having concluded that the coercion was unconstitutional, the Court should have stricken the entire statute on that basis, rather than just the portion that would take away existing state funds.  "I disagreed with the severability analysis," Lee said.  Seven justices found the coercion unconstitutional.  "The appropriate remedy was to invalidate the whole law at that point."

Regarding Republlican talking points about "Repeal and Replace,"  Lee said that outright repeal will be difficult without 60 Republican votes in the Senate, an unlikely prospect.  However, "there's alot we can do with only 51 votes."  Specifically, Lee suggested that given a Republican majority in January, Republicans can  suspend the "tax" provisions and refuse to fund the ACA's implementation. While cautioning that he is "not promising a repeal," Lee said there is a "strong, strong likelihood" that Republicans can disable the act.  That will be crucial because the "difficulty and expense in implementation are only going to get more severe," and will be much worse than the American people were promised.

Lee favors and incremental approach to the "Replace" part of "Repeal and Replace."  This is colored by his perspective as a consitutional conservative.  He said there is no single Republican alternative, no catch-all solution to reforming health care.  He favors proceeding "step by step" with "common sense decisions" to put Americans back in charge of their own health care. He said Republicans need to avoid rushing to pass something, and said that is how we ended up with a 2700 page bill that no one had read before voting upon.

When asked about his role in the Tea Party Caucus, Lee said he tries to remind his colleagues that the federal government is one of limited, enumerated powers.  Citing James Madison in The Federalist No. 45, Lee observed that there are lots of things that the states can do that the federal government cannot. Healthcare is a good example of that principle of federalism.  Some of the health care reforms, therefore need to take place at the state level, Lee said.

On a personal note, I can see why Sen. Paul is such a big fan of Lee.  The man is not just brilliant and conservative, but he is thoughtful. He thinks deeply about the appropriate role of the federal government with respect to the states and to individuals.  His presence in the Senate gives me hope for the future of conseravtism in the Republican Party.