On 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.