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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.