Gonzales On Upholding Of Health Reform Act

Previously published in Nashville Post, June 2012.

Former U.S. Attorney General Alberto Gonzales spoke late Thursday to NashvillePost.com on the U.S. Supreme Court decision validating the controversial health care legislation passed by Congress early in the term of President Obama.

The decision is being called the most important Supreme Court decision since the one that cleared the path for his former boss, President George W. Bush, to move into the White House. Now a senior counsel at Waller Lansden Dortch & Davis as well as a law professor at Belmont University College of Law, Gonzales weighed in on the process and the surprise elements of the Supreme Court's ruling.

"I did not anticipate that the Court would find the argument about the Commerce Clause unconstitutional yet still uphold the act," he said, adding that he thinks the Commerce Clause is being used expansively in a way the framers of the Constitution did not intend.

He added that he was surprised by the vote of Justice Anthony Kennedy, whom he had expected would join what is called the "liberal wing" of the Supreme Court to make it a 6-3 decision, not 5-4.

Having interviewed and vetted Chief Justice John Roberts twice for President Bush — first for the U.S. Court of Appeals for the District of Columbia and then for his current position — Gonzales said he had a good idea that Roberts would write the majority opinion and figured he would bring Kennedy with him.

"Overall, I am not surprised how it was upheld but rather at how we got there," he said.

While many media outlets have focused on the determination by Roberts that the health care legislation was a tax — contrary to the opinion of Obama, whose team had first and foremost argued the legislation was legal under the Commerce Clause — Gonzales said his experience has shown him it is not uncommon for a judge to decide a case on grounds that were not presented forcefully by counsel in arguments.

Prior to serving as U.S. attorney general, Gonzales served as White House counsel, secretary of the State of Texas and as associate justice on the Texas Supreme Court. Asked about the...