Randy Barnett: Losing ObamaCare While Preserving the Constitution

“We won in our effort to preserve the Constitution and, in fact, we moved the ball in a more positive direction,” says Georgetown Law's Randy Barnett, one of the legal architects behind the constitutional challenge to ObamaCare.

Chief Justice John Roberts’ majority opinion in the 5-to-4 decision upheld ObamaCare's individual mandate as an exercise of Congress’ tax powers, while simultaneously rejecting the Obama administration’s sweeping assertion of federal power under the Commerce Clause. Barnett argues that the chief justice “substituted a less dangerous tax power for a far more dangerous Commerce Clause power." Had the Supreme Court accepted the government’s theory of the Commerce Clause, Barnett explains, Congress would have had the power "to do anything it wants with respect to the economy."

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 (2004), Barnett represented the National Federation of Independent Business in its challenge to the Patient Protection and Affordable Care Act.

Reason Senior Editor Damon Root recently sat down with Barnett to discuss the ObamaCare decision, the “echo chamber” of liberal academia, and whether the Constitution is consistent with libertarian principles.

Approximately 33 minutes.

Shot by Jim Epstein and Joshua Swain, and edited by Epstein.

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  • DJF||

    So its a win because

    We get Obamacare

    We get taxed for not doing or buying something

    We get no roll back of the use of the commerce clause.

    I guess this guy would tell the family with the dead brother and the dead dog that at least the brother won’t be sad that the dog is dead since he is dead. The glass is full even when its empty.

  • Ice Nine||

    Barnett had a lot invested in a good outcome of this case.

  • DJF||

    Not just this case, he probably plans to go before the Supreme Court in other cases so its best to suck up to the Chief Justice.

  • o3||

    palin's [DEATH PANELS] will *NOT* increase the kill totals above normal suicide.

    The legalisation of euthanasia in the Netherlands has not led to an increase in the number of cases according to a team of Dutch researchers.

    The findings published today in medical journal The Lancet , show that about three percent of all deaths in 2010 were the result of euthanasia or assisted suicide. This compares to pre-legalisation levels of 2.8 percent.

    When euthanasia was legalised in 2002, opponents warned that there would be an increase in the involuntary euthanasia of terminally ill or elderly patients. However, Professor Bregje Onwuteaka-Philipsen of Amsterdam’s VU University says there has actually been a drop in such deaths.
    Based on interviews with 6,000 doctors and research into 7,000 deaths, the team found just 300 cases of euthanasia where the patient had not given explicit consent in 2010, compared with around 1,000 in the years prior to legalisation.
    http://www.rnw.nl/english/arti.....egislation

  • SIV||

    It's the Netherlands.
    "not given explicit consent " = "hid in the attic"

  • BarryD||

    "Death panels" have nothing whatever to do with euthanasia or suicide. The point was that care would be denied to some people with serious illnesses with a poor prognosis and expensive treatments, in an effort to save money.

    Are you really this stupid, or just being paid to post bullshit?

  • o3||

    oh im familar w jan brewer's state death panels kicking the gravely ill off state medicare.

  • ThatSkepticGuy||

    "The findings published today in medical journal The Lancet"

    Would that be the same "Lancet" that gave rise to Andrew Wakefield's anti-vax idiocy?

  • Ken Shultz||

    Barnett argues that the chief justice "substituted a less dangerous tax power for a far more dangerous Commerce Clause power." Had the Supreme Court accepted the government's theory of the Commerce Clause, Barnett explains, Congress would have had the power "to do anything it wants with respect to the economy."

    Thank God they shot us in the leg!

    Otherwise they might have shot us in the head, and did you really want that?

    Huh? Well did you?!

    You should be on your hands and knees thanking them for shooting us in the leg. And if you haven't moved them to the top of your Christmas card list, then you're just an ignorant ungrateful bastard.

  • DJF||

    "substituted a less dangerous tax power for a far more dangerous Commerce Clause power."

    And this is just wrong, how is unlimited power to tax less dangerous then the Commerce Clause. Even Justice Marshall said that the Power to tax was the power to destroy.

  • Auric Demonocles||

    There's now an intermediate step before they can throw you in jail.

  • Calidissident||

    It's not like the commerce clause is all that limited. Basically, they can't force you to engage in commerce. Almost anything else is fair game, according to the court

  • VG Zaytsev||

    It's also not like Roberts sole opinion regarding the CC is anything but dicta and will not restrain future government action in the least.

    It is shocking that a professor of legal theory is ignorant of that fact or lying about it.

  • ||

    I'll admit that it's something of a saving grace that we did NOT end up with a precedent that says the federal government can order you to buy things under the commerce clause.

    The government has been using the taxing power for a long time to manipulate behavior. It's unfortunate that they're going an extra step and adding taxes for NOT doing things (as opposed to offering a deduction for doing them, which has a somewhat different effect), which is something of an expansion of the taxing power.

    Unfortunately, we're still stuck with the awful community rating and guarenteed issue provisions, which force lower-risk people to subsidize the cost of insurance for higher-risk ones. The mandate is essentially a tax imposed upon healthy people who don't need insurance, not free-riders.

    It's saying "You healthy people? Fuck you, it's your duty to pay for health care for sick people, whether you ant to or not." That is what it boils down to. A tax on healthiness.

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    Tobias: It's out of context.
    Tobias: (on tape) I wouldn't mind kissing that man between the cheeks, so to speak.
    Narrator: And he realizes there is something distinct about the way he speaks.
    Tobias: Tobias, you blowhard!

  • R C Dean||

    Sorry, but I think this is just spin:

    We won in our effort to preserve the Constitution and, in fact, we moved the ball in a more positive direction,

    By my count, we there is zip, zero, nada precedent imposing any limits on the commerce power, an (arguable) expansion of the tax power, and an expansion of judicial deference to Congress.

    How any of that moves the ball in a positive direction (unless you are a crypto-authoritarian) is a mystery.

  • wef||

    Here is what the ginsburg has to say about what future justices will likely consider the hopeful but irrelevant meanderings of Roberts around the Commerce Clause:

    THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it....It is a reading that should not have staying power.

    Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend “for the . . . general Welfare of the United States.” - I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.

    THE CHIEF JUSTICE states that he must evaluate the constitutionality of the minimum coverage provision under the Commerce Clause because the provision “reads more naturally as a command to buy insurance than as a tax.”- THE CHIEF JUSTICE ultimately concludes, however, that interpreting the provision as a tax is a “fairly possible” construction. - That being so, I see no reason to undertake a Commerce Clause analysis that is not outcome determinative.

  • ||

    Reason Senior Editor Damon Root recently sat down with Barnett to discuss the ObamaCare decision, the http://www.lunettesporto.com/l.....c-3_6.html “echo chamber” of liberal academia, and whether the Constitution is consistent with libertarian principles.

    Approximately 33 minutes.

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