‘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

(Page 2 of 3)

reason: In his opinion, Roberts wrote, “It is not our job to protect the people from the consequences of their political choices.” What’s wrong with that? We have a presidential election coming up. If you’re unhappy with ObamaCare, why not just take your complaints to the ballot box?

Barnett: That’s exactly wrong. It is the Court’s job to protect the people from the consequences of their political choices when they violate the Constitution of the United States, which is a higher law, also enacted by the people, to check Congress and the other branches of government. The Constitution is the law that governs those who govern the people. It was put in place by the people. So the people who are supposed to be bound by that law, which are Congress, the courts, and the president, they can’t change it to make it more suitable to them. It’s the Court’s job to follow the Constitution.

reason: Although Roberts ultimately upheld the individual mandate under the tax power, he did fully accept your argument that the mandate was an unprecedented exercise of congressional power under the Commerce Clause.

Barnett: It’s unprecedented, the courts are empowered to enforce it, and the individual insurance mandate violates it. He said all three of those things. That was our whole case.

reason: Counting the four dissenters, that means five justices accepted your arguments on the Commerce Clause. Is that a binding outcome?

Barnett: There are two different ways of looking at it. The technical way: Were there five justices in support of the opinion of the Court, which identified what the holding was? And it turns out there were. It turns out that the liberal justices signed on to part three of Justice Roberts’ opinion in which he said the holding of this Court is that you cannot be compelled into activity under the Commerce Clause, so we’re going to do this saving construction instead. It says “the Court holds” this and four liberal justices signed on to that part of the opinion. So it has five justices, that makes it the holding of the Court. That’s one way of looking at it. That’s the way that’s pertinent for other courts.

In terms of future Supreme Courts, and the general public, the other way of looking at it is pragmatically. Are there five votes to uphold something? If you went to a district court judge in the future, would a district court judge look up at the Supreme Court and say, “Are there five votes for drawing a line in Article I and saying Congress can’t go that far?” Clearly there are. So if you just look at it doctrinally, or if you look at it pragmatically, it’s the holding of the case.

(Interview continues below video.)

reason: None of your arguments challenged any existing Supreme Court precedents. Doesn’t that make this a limited victory?

Barnett: For two years I’ve been hearing, “If Barnett’s view or the challenger’s view is accepted, it’s a threat to the entire post-New Deal apparatus and it’s a return to the bad old days.” And I’ve been denying it. I’ve been saying if we win, it’ll apply to one law that’s ever been passed, the Affordable Care Act, the individual mandate. It was the first time Congress did this, and as you say, we haven’t challenged any precedent. It will leave all precedent in place, it will leave all laws in place, it will actually be a very limited victory. The day after the opinion is issued, I’m hearing liberal commentators like Geoff Stone, former dean of Chicago Law School, saying, “You know, this is actually a very limited opinion, it only applies to mandates and they probably won’t be doing mandates again anyways.” And that’s exactly what I’ve been saying all along. So in that sense, it’s very limited.

However, there are two ways of looking at it. First of all, if we had lost, it would not have been limited. Had we lost, we would have had a national problems clause in the Constitution, and Congress would have had the power that all law professors want it to have, which is the power to do anything it wants with respect to the economy. They clearly were refuted. The view that 99 percent of law professors hold today could not command five votes of the Supreme Court. That’s huge. But even more so, it basically says the Commerce Clause has limits. The Supreme Court will enforce those limits. And here’s a third important thing: The Necessary and Proper Clause cannot be used for an end run around those limits, which there was much less case law on. That was in some sense the doctrinally weakest part of our argument. The Supreme Court has been very deferential about what’s a “necessary” law. They basically defer to Congress. And a lot of people have claimed that the word proper doesn’t do any independent work.

Our theory was based on the idea that proper is separate from necessary and however necessary this law was to the Affordable Care Act, it was an improper means. Most law professors rejected that idea. In fact, there is very little authority one way or the other on that. We had some case law. But this case made fantastic law. Chief Justice Roberts said specifically that the mandate was an improper means under the Necessary and Proper Clause for executing the commerce power.

reason: What’s the practical impact of winning on these grounds?

Barnett: The future depends on what future justices want to do. Let’s be realistic. I’ve been realistic from day one. It all depends on what future justices want to do. No. 1, if future justices want to protect the enumerated powers scheme, they won’t have a super bad precedent standing in their way, which they would have if we’d lost on the Commerce Clause. No. 2, they’ve got a tremendous precedent for the idea that the enumerated powers scheme means something and is judicially enforceable, and the Necessary and Proper Clause is not a blank check for government. That’s a huge accomplishment.

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  • Fist of Etiquette||

    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.

  • jester||

    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.

  • crasch||

    No execution by firing squad! Victory! Nope, it's gonna be execution by lethal injection instead.

  • JeremyR||

    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?

  • Generic Stranger||

    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.

  • Mike M.||

    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.

  • ||

    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.

  • anarch||

    Coercing them into doing so with a tax is not significantly different than doing so with a gun.
  • ||

    Yes, you are correct. I am pissed so I didnt compose that as thoughtfully as I should have.

  • anarch||

    Don't let the terrorists win!

  • jester||

    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

  • Generic Stranger||

    In this farewell
    There’s no blood
    There’s no alibi
    ‘Cause I’ve drawn regret
    From the truth
    Of a thousand lies

    So let mercy come
    And wash away
    What I’ve done

  • jester||

    You better watch out
    You better not cry
    You better not pout
    You know why
    Commerce Clause is coming

  • Generic Stranger||

    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.

  • Robert||

    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.

  • Rich||

    "Cheer up! Things could be worse."

  • Mike M.||

    "Also, you never had it so good."

  • Generic Stranger||

    "Always look on the bright side of life."


  • jester||

    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...

  • R C Dean||

    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.

  • Ron||

    you said it best

  • Downsize DC||

    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?

  • IceTrey||

    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.

  • Sevo||

    ‘We Won ...'
    Pyrrhus would be proud.

  • Mainer2||


  • snorkeldogg||

    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

  • Anna Catherine||

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  • gregger||

    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.

  • FD||

    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.

  • tipuasher||

    I be thankful for your comments and would love to have anything that you write


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