Sen. Hatch: ‘I Still Have a Very High Opinion of Chief Justice Roberts’

By Elizabeth Harrington | July 9, 2012 | 5:14 PM EDT

Sen. Orrin Hatch (R-Utah). ( Starr)

( – Sen. Orrin Hatch (R-Nev.) said Monday he “still has a very high opinion of Chief Justice John Roberts," despite Roberts opinion upholding the individual mandate in Obamacare as constitutional.

Hatch, the ranking Republican on the Senate Finance Committee and a senior member of the Senate Judiciary Committee, had been one of the earliest and most forceful voices in the Senate speaking out against the constitutionality of the individual mandate when it was first proposed in 2009.

On Monday, however, Hatch told that Roberts “certainly had the right” to rule that the mandate is constitutional as a tax.

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“Naturally, I would have preferred him to rule out the individual mandate,” Hatch said.

Hatch took part in an event hosted by the American Enterprise Institute (AEI) on the aftermath of a June 28 Supreme Court decision which upheld the constitutionality of the Affordable Care Act’s individual mandate to purchase insurance, based on the federal government’s power to tax and spend.

Following the event, asked Hatch: “During the confirmation hearing for Chief Justice Roberts back in 2005 you said that he (Roberts) was a ‘perfect example’ of a judge who will not legislate from the bench. Would you take back that statement now?”

“No not at all,” Hatch said. “I have a pretty high opinion of Chief Justice Roberts and I understand what he’s done here.

“I would have preferred him to find the individual mandate unconstitutional, but there were a number of very important aspects to that decision, not the least of which is his approach that the federal government cannot force the states to take the extra Medicaid responsibilities,” he said.

“And that was very, very important, and coupled with that was that there’s a limit to what the Commerce Clause--Article I Section 8--can impose on the American people,” Hatch added.

“That was only the third time since 1942 in the Wickard v Filburn case, the third time that they have put parameters around the Commerce Clause. That was a very important part of that decision.”

Hatch acknowledged the dissenting opinion of Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy, which argued that the individual mandate was unconstitutional.

“Naturally, I would have preferred him to rule out the individual mandate,” Hatch said.

“I thought the dissent was an excellent opinion, but I still have a very high opinion of Chief Justice Roberts and that opinion hasn’t been reduced,” Hatch said. “(H)is opinion was different than what I thought it would be, although I was one who predicted that the Medicaid expansion was a big problem in this bill.” pressed Hatch on further, asking: “But ruling the individual mandate as a tax-- Is that constitutionally defensible? Do you see how it is constitutional?”

He replied: “Well, the Chief Justice and four others said it is and therefore it is,” he said. “All throughout the floor debate, all throughout the litigation period the administration argued that it was a penalty, not a tax. Personally, I think the Court should have taken the administration’s representation and said it was a penalty.

“On the other hand, I can see why the Chief Justice decided it was a tax,” he said. “I could see where he certainly had the right to do that and to pick up a number of liberal justices to confirm that.”

Hatch continued: “The worry there is -- at least he circumscribed an excessive use of the Commerce Clause, Article I Section 8. The problem with finding it a tax is that some people believe that they can now tax anything, at any time, any place.”

“Or inactivity?” asked.

“Well, or in this case, like you say, it’s not an activity in commerce, but an inactivity,” he said. “OK, I can live with that because I think it’s very difficult to raise taxes.

“The American people really get excited about stuff like that and that just opens the door to even greater battles over the taxing power of the federal government in the future,” Hatch said. “So, these are, it was an interesting decision, I’m going to spend quite a bit of time studying it and already have studied it to a degree but I need to spend more time on it.”

As a member of the Judiciary Committee, Hatch had praised then-nominee Roberts on the first day of his 2005 confirmation hearings.

“The confirmation process has sometimes been -- it seems to me -- unbecoming of the Senate and disrespectful of nominees,” Hatch said on Sept. 12, 2005, during his opening statement.

“I applaud President [George W.] Bush for resisting this trend and for nominating qualified men and women who, as judges, will not legislate from the bench.

“You're a perfect example of that,” he said.

Hatch also commended what he said was Roberts’ “tremendously complex and important and honorable record.”

“We have a great deal of respect for you,” he said at the time. “We expect you to make a great justice.”

Hatch’s comments Monday came following an AEI event, “The Affordable Care Act: What Should Congress do Next?" in Washington, D.C.

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