‘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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reason: You also prevailed on the spending power.
Barnett: It was a huge victory. No one thought—in fact, I didn’t even think—that we had a chance on that. And we actually won. There’s never been a case since the New Deal where the Court found any restriction on the spending power. And the power to spend is actually not in the Constitution. There’s a power to tax, which presumably includes power to spend the money you get from the taxes. There’s been no judicial limitation on that at all.
Well, the Supreme Court found that line had been crossed. The vote was 7 to 2 that there was a line on the spending power, it got crossed, and then the remedy for that—which is, again, more than we expected because we didn’t expect to win on this claim at all—is that with respect to these Medicaid funds, Congress cannot withhold money for the existing Medicaid program in order to get the states to agree to an expansion of that program. They can’t leverage the money they’re spending on existing programs to coerce [the states] into doing this other one. This is a huge victory also.
reason: Why do you think liberal law professors lined up so overwhelmingly against the idea that the Commerce Clause imposes any sort of limits on congressional power?
Barnett: Since the New Deal, liberal academia—and there is almost no diversity in liberal academia, it’s a complete echo chamber where they basically talk to each other—has maintained that the New Deal Court’s jurisprudence and the Warren Court’s jurisprudence stand for the proposition that Congress has a national problems power. They have the power to solve any national problems, especially national problems that pertain to the economy, which is, when you think about it, everything.
That’s their view. That’s what they think the New Deal stood for. It’s not what the New Deal Court ever said; it’s not even what the Warren Court ever said, though the Warren Court took it a little farther than the New Deal Court. But they’ve been teaching it this way for 70 years. That’s why in 1995 when the Lopez case found a limit [by striking down the Gun Free School Zones Act for exceeding the Commerce Clause], they went berserk. Now Lopez is hallowed precedent that they use to show they believe in limits too, but at the time Lopez was “conservative judicial activism” because it found any limit at all. It violated their fundamental belief that there were no limits. So they dismissed Lopez. Then in the Morrison case, the Violence Against Women [Act] case in 2000, when the Court again held the line and found something unconstitutional, then they got scared and said, “Oh, maybe the Court’s serious, and maybe we were wrong.” And lower courts actually started operating then.
Then in 2005, in the Raich case—the case on behalf of Angel Raich and Diane Monson that I represented all the way up to the Supreme Court—when Justice Scalia and Justice Kennedy crossed over and joined the liberals in upholding the application of the Controlled Substance Act to marijuana you grow in your own back yard to consume yourself, they breathed a sigh of relief. They said, “We were right all along.” The little new blip of federalism is nothing. They said, “We’re back to our default position that Congress has unlimited power.” When we made our argument now, seven years later, they were already back in their original position. We were arguing, “There’s a limit,” and they said, “That’s crazy. That violates everything we know.”
reason: Do you think academia will become less of an echo chamber?
Barnett: I don’t know. I hope it will. I have a center at Georgetown, called the Georgetown Center for the Constitution, that’s gearing up this fall. One of its missions is to bring fellows in who might go on to teaching, and other institutions are doing similar things. It’s going to be a long process because in fact the bias against libertarians and conservatives in academia is overpowering, in law schools in particular. Though I will say that there’s a greater bias toward conservatives than there is toward libertarians. Libertarians are considered safer or something, a little more interesting, and conservatives are more out there.
The thing I tell libertarians generally about this—not just academics or prospective academics—is you can’t make your happiness contingent on getting a libertarian society. The struggle for liberty will never end because there are always going to be statists. There are always going to be people who enjoy security over liberty, because that’s another part of the natural instincts that people have. And so the best that we can ever accomplish is keeping liberty alive. And you can keep liberty alive just by being a libertarian yourself, and writing about it, and getting other people to be. Even if the society you live in is not, you can at least keep the idea of liberty alive, possibly liberty itself.
reason: In a famous 1905 dissent, Justice Oliver Wendell Holmes wrote, “The Constitution does not enact Mr. Herbert Spencer’s Social Statics,” meaning that the Constitution did not enshrine libertarian principles. Is that wrong?
Barnett: Holmes was wrong about this, as he was wrong about almost everything. The Constitution we have is a Lockean Constitution. It’s informed by Lockean principles. As a result, it’s quite consistent with freedom of contract, and property rights, and those sorts of things. If it were true that it was consistent with all political theories, you wouldn’t have to have a living version of it that leaves out whole parts. Why did they cut out the Privileges or Immunities Clause? Why did they cut out the Ninth Amendment? Why were all these parts gone? Because they got in the way. If they didn’t get in the way, you could just use them. But you’ve got to get rid of them, because they’re in the way. You can’t have it both ways. You can’t say, “The Constitution we have is consistent with all legislative ends, all laws,” and then get rid of the [parts] that get in the way.
reason: So the Constitution is compatible with libertarian principles?
Barnett: It is compatible with them, and it is actually what has kept us a freer society. Here’s a way of thinking about it: The Founders built a Constitution that was so well-engineered—and [they] built in so many redundant checks on power—that even if you get rid of this one, and this one, and this one, just the ones that are left are enough to keep us relatively free. It’s as though you’re on a four-engine jet. You’ve lost three engines. The last remaining engine is still keeping you aloft, because the jet was well designed. It was designed to fly on one engine, although that’s not optimal. And that’s where we are now. We’re flying on one engine. What’s left of the Constitution is still good enough to keep us aloft. But it would sure be a lot better if we could get the other engines fired up.
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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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