Yesterday John wrote about the appearance of Obama chief of staff Jacob Lew on Fox News Sunday. Lew did not simply deny that that the Supreme Court upheld Obamacare on the ground that the individual mandate is a tax. He would’t even concede that the Supreme Court so held (wrongly, in my opinion) because the lawyer representing the government in the case asserted that it was.
When Chris Wallace plays the clip from Solicitor General Donald Verrilli making the relevant point during the oral argument before the Court, you can see the gorge rising in Lew’s face. He is angry at being shown up as a liar, yet it does not deter him in the least. He continues to cite the government’s Commerce Clause power, as though it had not been rejected by the Court. You really have to see this.
Whether or not the individual mandate was upheld on the ground that it could be construed as a tax, the Solicitor General of the United States argued that it was one on behalf of the government. In other words, Obama argued that it was. Obama cannot now deny properly deny the argument made on his behalf before the Court. If Obama disagreed with the argument, he could have instructed the Solicitor General not to make it. It seems to me that this is the essential point of the exchange, and that not even Wallace quite understands or makes it.
The tax argument advanced by the Solicitor General and adopted by Chief Justice Roberts in his opinion for the Court is, as Professor Randy Barnett observes, “transparently lame.” It was essentially a throwaway argument.
There is a reason why the Solicitor General made so little of the argument in the case: it is a weak argument. It is weaker even than the Commerce Clause argument on which the administration staked its case. Nevertheless, Obama cannot properly disavow what he himself asserted through the Solicitor General before the Court.
I believe that every point that Lew makes in response to Wallace’s questions is false. From this interview we can deduce Lew’s Law: Obama can and will say anything in pursuit of his reelection, counting on his ability to put one over on the American people one more time. Watching Lew, I think we would be well advised to strap on our seat belts for the turbulence ahead.