‘We Won in Our Effort to Preserve the Constitution’
Legal scholar Randy Barnett on why the Supreme Court ObamaCare decision isn’t as bad as you think
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GoogleOn June 28, the U.S. Supreme Court announced its eagerly anticipated decision in National Federation of Independent Business v. Sebelius, the case arising from the legal challenge to the Patient Protection and Affordable Care Act, a.k.a. ObamaCare. In his majority opinion, Chief Justice John Roberts rejected the Obama administration’s claim that Congress may force Americans to buy health insurance under its power to “regulate commerce…among the several states” but found the mandate lawful under a different constitutional provision, Congress’ power to “lay and collect taxes.” “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution,” Roberts declared. “Granting the Act the full measure of deference owed to federal statutes, it can be so read.”
Most opponents of the health care law promptly described the ruling as an unmitigated disaster, but not the libertarian legal scholar most closely associated with the case: Georgetown University law professor Randy Barnett. An attorney for the National Federation of Independent Business and one of the architects of the ObamaCare legal challenge, Barnett maintains there is a silver lining to Roberts’ ruling. The chief justice “substituted a less dangerous tax power for a far more dangerous Commerce Clause power,” Barnett said during an interview in reason’s Washington, D.C., office in early July. Had the Supreme Court accepted the government’s unprecedented theory of the Commerce Clause, Barnett explains, Congress would have had the power “to do anything it wants with respect to the economy.” The upshot, he argues, is “we won in our effort to preserve the Constitution and in fact, we moved the ball in a positive direction.”
Barnett, a professor of legal theory at Georgetown University Law Center and the author of nine books, including Restoring the Lost Constitution: The Presumption of Liberty (Princeton), sat down with Senior Editor Damon Root to discuss the ObamaCare ruling, the “echo chamber” of liberal academia, and whether the Constitution is consistent with libertarian principles. To see a video of this interview, go to reason.tv.
reason: Three days after the health care decision came down, you wrote in The Washington Post, “We lost on health care. But the Constitution won.” What did you mean by that?
Randy Barnett: We brought the action against the mandate for two reasons. One is as a leverage point, our only constitutional leverage point, to defeat ObamaCare generally, and the second is because the theory by which the mandate was enacted, if it had been affirmed by the courts, could be a very dangerous theory. In fact, it would end the idea of limited and enumerated powers found in Article I of the Constitution. And so we’re really fighting both against ObamaCare and for the Constitution. And what I was pointing out in the Washington Post piece is that we lost in our fight against ObamaCare—although in a moment I’ll explain how we may not have lost as badly as some people think—but we won in our effort to preserve the Constitution, and in fact we moved the ball in a positive direction.
reason: The editorial page of The Wall Street Journal said Roberts’ opinion “substituted one unconstitutional expansion of government power for another” and gave the federal government a vast new taxing power. Is that wrong?
Barnett: Their punch line is right. He did substitute one unconstitutional version for another, but he substituted a much less dangerous unconstitutional principle for a much more dangerous one. That’s exactly the reason why this was a pretty big, important victory. What the justification for the law was supposed to be was the Commerce Clause. That’s how the law is written, as a regulation of commerce. And if Congress can regulate you when you’re not doing anything, that is a huge expansion. The theory under which that expansion is justified is essentially that Congress has the power to address all national problems. It’s as though we have a national problems clause in the Constitution. That’s what most law professors actually believe, and if that were true, that would be the end of the enumerated powers scheme.
What Chief Justice Roberts substituted for that—what he called a “saving construction,” which he admitted was not the best reading of the text—was a tax power, but not the tax power that law professors have been advocating. Law professors said, “You could just do this whole thing under the tax power. You could just call it a tax; it’d be the same.” But that’s not what he said. He said, “Well, it’s written like a tax, if you take the requirement out. First of all, you’ve got to take the requirement out.” There was a requirement that everybody buy insurance. You’ve got to take that out because that’s unconstitutional under the Commerce Clause. So [if] you take the requirement out, what you’re left with is the penalty. And the penalty, he said, is so low that it could actually be a tax and not a penalty.
He said the mandate was not a penalty because it was so low. If it had been higher, it might have been a penalty, and it would have been unconstitutional because it would be coercive. What he really said was that Congress can tax inactivity as long as those taxes allow people to make a choice. But if that monetary exaction, he said, ever got so punitive that it would be coercive, in that case it would be a penalty and it would be unconstitutional—he implied that it would be unconstitutional; that wasn’t before him.
So he substituted a less dangerous tax power for a far more dangerous Commerce Clause power. If the Commerce Clause power had been upheld, not only would the enumerated powers scheme have gone away, but Congress could have changed the law to punish this or any future mandates by very extensive penalties, like high fines and even imprisonment. One last way of explaining the difference: Imagine that all the drug laws were justified under the tax power and not under the commerce power. All the drug laws we have are Commerce Clause power. But imagine they were only justified under the tax power, under the principle that Chief Justice Roberts identified. That would mean the only thing the government could do to you for violating the drug laws would be to charge you a reasonable, modest tax. They couldn’t even charge you a punitive tax, and they certainly couldn’t put you in jail. If we actually achieved that reading of the drug laws, it wouldn’t be a perfectly libertarian solution, but you’d have to open up the jails and let millions of people out under that reading of the Constitution.
reason: How unusual is Roberts’ argument?
Barnett: He appears to be the only person in the United States and certainly the only legal commentator who holds the view that he announced last week. And that is this view that the Commerce Clause makes the mandate unconstitutional because it compels commerce in order to regulate it—that’s unconstitutional. Therefore we have to adopt a saving construction to eliminate the requirement, and the penalty can be justified as a tax, which can’t be more than a reasonable amount. That is unique to him. No one’s ever identified that view before. No academic who supported the mandate has held that view. No judge who’s considered this case has held that view. No other justice holds that view. This view is unique to Chief Justice Roberts and was unknown until he announced it. And that should tell you something about whether it was a legally compelled outcome, because if this was the obvious, best legally compelled outcome, someone would have held it before, and no one did.
reason: If it’s not a legally compelled outcome, what’s the explanation?
Barnett: It’s circumstantial evidence that this was a politically compelled outcome. And in fact, I’m not exactly sure why that would even be so controversial to say since all the people on the left—from the president to the chairman of the Senate Judiciary Committee on down to columnists like Jeff Rosen—were urging Chief Justice Roberts to save the legitimacy of the Court by not going along with the 5-to-4 conservative-liberal decision striking down the president’s signature legislation. [Those] are political considerations, none of which relate to the Constitution or even to Supreme Court doctrine about the Constitution. It all relates to political considerations, and if those were the considerations urged upon him that persuaded him to cop out in the way he did, then that makes it a political decision.
But I want to be clear about one thing. It’s not like I’m saying it was a political decision in the sense of the five justices who voted to uphold ObamaCare were acting politically. I think four justices were acting on principle. They have a principled view that there’s a national powers clause in the Constitution; that’s their principled view. Then four justices were acting in principle against that view. One justice, the swing justice, his view was the one that was possibly motivated politically.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.
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That’s exactly the reason why this was a pretty big, important victory.
OMG, I am sick of hearing this. There was no victory. The Commerce Clause will continue to be used for unconstitutional power grabs and now Congress is emboldened with the taxing authority, too. Roberts could have said no the Commerce Clause argument and no to the taxing argument, as that is not how the law was sold to the public and each other by its crafters.
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Give 'em a break. He was being bipartisan, you know, reaching across the aisle. The Commerce Clause trumps the concept of an independant judiciary. Where have you been? There are things that are just too important.
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No execution by firing squad! Victory! Nope, it's gonna be execution by lethal injection instead.
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Isn't this old news (or rather and old opinion)? Why bring it up now? Did the October Issue really go to print back in June/July?
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As to your last point: most likely, yes. Or at least that was the deadline for stories. Most monthly magazines are done several months in advance.
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And once again, I come here just to have someone piss on me and tell me that it's raining. I'm not sure how much more of this bullshit I can take.
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So...if we look at obamacare in a mirror, squint real hard then hold your mouth just right it looks like something its not?
Fuck Roberts. It is an unconstitutional piece of shit, any ten year old can see that on it's face.Congress is attempting to force people to engage in commerce they would not otherwise engage in. Coercing them into doing so with a tax is not significantly different than doing so with a gun.
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Coercing them into doing so with a tax is
not significantly different thandoing so with a gun. -
Yes, you are correct. I am pissed so I didnt compose that as thoughtfully as I should have.
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Don't let the terrorists win!
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Substitute your lies for fact
I can see right through your plastic mac
I look all white, but my dad was black
My fine-looking suit is really made out of sack -
In this farewell
There’s no blood
There’s no alibi
‘Cause I’ve drawn regret
From the truth
Of a thousand liesSo let mercy come
And wash away
What I’ve done -
You better watch out
You better not cry
You better not pout
You know why
Commerce Clause is coming -
Someone told me long ago there's a calm before the storm,
I know it's been comin' for some time.
When it's over, so they say,It'll rain a sunny day,
I know Shinin' down like water. -
What Randy Barnett probably doesn't realize is that until about 45 yrs. ago, the domestic provisions of the federal narcotics laws were based on the taxing power! The taxes were significant although possibly not punitive, but the taxes were allowed to be paid only by certain classes of applicants; they forbade others to pay the tax, and then punished them for not paying the tax.
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"Cheer up! Things could be worse."
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"Also, you never had it so good."
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"Always look on the bright side of life."
*whistles*
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It's kinda like the argument by redstaters that Romney will appoint 'better' justices. I guess that might barely be true, but it's a pretty low bar they have to pass. We're talking hurdles not limbo or that silly exam John John could never seem to...
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Here's the problem with the decision: its not so much that Roberts said ObamaCare could go forward under the taxing clause.
Its that he ramped up the judicial deference trope to whole new levels, and in the name of political accountability as a limit on Congressional power, he gutted political accountability.
The Dems were afraid to implement the mandate as a tax, and went to great lengths to be perfectly clear that it wasn't a tax, because they knew the political backlash from that would be bad. What happened in Congress was that political accountability drove the Dems to specifically repudiate their (arguably) Constitutional means for doing this, and use an unconstitutional means.
Roberts undid that by retroactively amending, in effect, the statute into something that political accountability had prohibited. All while garbling on about how the real check on Congress was political accountability.
So, an unconstitutional statute that was the only politically acceptable way to do something was converted into a Constitutional statute that was not, and could not, be passed. By a judge, citing judicial deferance and political accountability. It could not be more perverse, or set a worse precedent.
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you said it best
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What was left out of this interview is extremely important. Yes, it's a victory that the feds can't force you to eat broccoli, but now they CAN tax you for NOT eating broccoli. Isn't that a direct tax on a person's very existence? Isn't that outlawed by the Constitution unless apportioned among the states?
Can't they now tax you if you DON'T purchase a GM car?
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Too true. In effect, the Obama shared-responsibility payment is a tax on not consuming regulated, privately provided, health insurance in the United States. I've asked a dozen times on Salon exactly what kind of tax it is and have never gotten an answer.
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‘We Won ...'
Pyrrhus would be proud. -
^Winner^
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Folks should see this new viral Obama video comparing words to actions - 830,000 cumulative youtube views in 2 weeks. Watch and share with friends: http://www.youtube.com/watch?v=o8R5GvwUFU8
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Hi to all,I am new person to the blog.I read your blog it is informative.Keep on good work on the blog.
klima montajı -
On the issue of the Supreme Court finding a penalty is also a tax.
A tax is normally levied to fund government. The social security tax is levied to fund outlays to those who have paid the tax.
If taxpayers fail to buy insurance the government levies a tax/penalty. What outlay is made then by the government to programs benefitting taxpayers? None. Is such an outlay a requisite for levying a tax?
The answer is probably that all taxes are levied to fund the general activities of the government, which is what even the social security tax is levied for.
But one would expect the health care tax would be to fund health care. Which it doesn’t. So taxpayers pay a tax to fund something that they are expected to fund themselves.
Very confusing.
So is a penalty imposed for failure to obey a law a tax levy?
I have a tough time answering yes.
But, of course, courts have judicial discretion, something I don’t have. Something the drafters of the constitution did not want courts to have either, at least the power to abuse discretion.
So what we have is not a tax, rather an abuse of discretion.
And a breach of trust.
How do we deal with such abuse and breach?
Fortunately our founders covered that one as well.
We vote the bastards out of office.
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Self delusion. Or perhaps attempting to save face.
As one of those who brought suit against the mandate, Barnett lost.
And he lost badly.
He can't man up to face it. At least not publicly. -
I be thankful for your comments and would love to have anything that you write
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