Randy Barnett: A weird victory for federalism


Because we couldn't find a blander picture.

Randy Barnett, lawyer and professor of constitutional law and contracts at Georgetown University Law Center, says the rewriting of the Patient Protection and Affordable Care Act (ACA or Obamacare) to make the individual mandate a tax rather than commerce clause regulation did not damage and may have advanced the case for narrowing the commerce clause. 

Today, the Roberts Court reaffirmed the "first principle" announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power:  "The individual mandate cannot be upheld as an exercise of Congress's power under the Commerce Clause," wrote Chief Justice Roberts. "That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it."  Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.

In the 1930s & 40s, when Congress was asserting new powers to address the grave distress caused by the Great Depression, the Court relented and allowed it to reach wholly intrastate activity that, in the aggregate had a substantial affect on interstate commerce.  This was interpreted by academics to mean that Congress now had a plenary power over anything that affected the national economy, which means any activity at all.  The Court would always defer to Congress's assertion of its Commerce Clause powers.

I defer to Barnett's deep understanding, though my gut tells me bad rulings make bad law, and this one seems to read so tortured that even the concurrers (concurrors?) don't like it. (I admit I haven't finished reading it.)

NEXT: Greg Beato on the Internet vs. the NEA

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Must…look…away!
    Must…get…some work done!

  2. Randy, now you’re sounding like those losers on MSNBC after the Scott Walker victory. Just stop. It’s not dignified.

    This is not a victory for libertarianism, limited government or freedom.

    Jeanine Garofalo won. That is all.

    1. Er… the Supreme Court did exactly what Barnett says it did: rejected the government’s expansive reading of the Commerce Clause. Barnett is far from a “loser” in that regard. He was key to this rejection taking place.

      1. Sure, they refused to expand the meaning of the Commerce Clause this time–leaving open the question of what limits really exist except in this narrow sense–but they expanded power by calling it a tax. Despite the fact that it was expressly not called a tax and that allowing the government to do, well, anything through its tax power creates yet another end-run around any idea of limited government.

        1. Look, I agree that today is terrible news in the big-picture liberty sense. There’s no getting around that.

          But to call Barnett a “loser” here — when the court just validated a very specific and groundbreaking argument that he was responsible for advancing — is a little goofy.

          1. I’m not calling him a loser. He’s fighting the good fight.

            Besides, today, we’re all losers. Even those who think they won something.

          2. I didn’t call Barnett a loser. I said he’s sounding like the losers on MSNBC by declaring today a victory.

            It just comes off sounding desperate.

            But Time Will Tell! For instance, Greece still doesn’t think it has a spending problem!

            1. Heinrich, I’d like another Ouzo! Put it on my tab!! Opa!!!

            2. I just think Barnett has a right to celebrate his own unique victory here, given the backdrop, the history and all the shit he took along the way.

            3. It dawns on me that maybe you don’t know who Randy Barnett is… It’s not like these guys are household names, after all.

              He’s not just some random libertarian desperately flailing to put a positive spin on disaster. He’s THE guy responsible for the Commerce Clause counterargument that ultimately prevailed in the Supreme Court today. For him and his argument, today is indeed “a weird victory,” as he calls it.

              1. It dawns on me that maybe you don’t know who Randy Barnett is… It’s not like these guys are household names, after all.

                Thanks. I actually didn’t know Randy Barnett’s past, and what you were referring to regarding “his personal victory”.

                So I see how he might be crowing.

                But that’s really just Randy Barnett’s position being affirmed by dicta.

                As Pro L said so elequently above, I would have rather lost the dicta and won the ruling.

                Libertarianism half won the dicta and got completely obliterated on the ruling.

            4. Incidentally, it’s not just Barnett that is characterizing today’s decision as a Commerce Clause victory for the right. Hell, it’s not even just conservatives: http://www.slate.com/articles/…..care_.html

        2. The SCOTUS stuck its finger in the dike while lowering the height of it.

        3. Exactly. I have no idea why you guys think this decision will have any more effect on Commerce Clause litigation than Lopez. It doesn’t strike down the Wickard line at all. In fact, it reinforces the reasoning in Wickard.

          From page 18 of the slip opinion (squirrels, don’t fail me now.):

          But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product.

          He’s got no problem in the remainder of that part of Part II of the opinion with Congress compelling individuals under the CC, if those individuals can be shown to engage in some form of commercial activity. I don’t think it’s that difficult for Congress to demonstrate some tenuous connection between a commercial activity an individual performs, and some other activity that Congress seeks to regulate under the CC.

          Tl;dr version: I don’t think Roberts’s rejection of the CC as a basis for upholding Obamacare is going to affect Congress’s ability to regulate whatever the hell it wants to.


          1. The idea that the Supreme Court will wholly reconstrue legislation as a tax, or whatever else it needs to be construed as to meet Constitutional muster: that’s truly novel, and frightening. Like Dean, in another of this multitude of O-Care threads, I can’t remember another time where they’ve done this.

            This isn’t just trying to reconcile conflicting sections in, e.g., the Bankruptcy Code, to try to get them to make sense. That’s fine, and they’ve done that all of the time. Congress sucks at drafting consistent legislation; who knew? This, OTOH, is taking a giant bill, and calling it something it explicitly stated it wasn’t. The dissent has clear concise language as to the differences between a tax and a penalty, and why the mandate is an example of the latter, not the former.

            I don’t see this tool as something the Supreme Court is only going to use once.

            And Roberts’s dismissal of the Anti-Injunction Act objection is just rank. So, even though O’care stated it wasn’t a tax, we’re going to construe it as a tax, except it’s not a tax for purposes of this law? Just unbelievably bad, and I’m confident in saying they’d ream any lower appellate court or district court that tried that kind of reasoning on them. As I said in another thread, Lewis Carroll would have thought that reasoning was horseshit.

  3. This is seriously pathetic.

  4. So future overreaches by Congress will be more likely to be rationalized by the tax power than the commerce clause. I guess if that’s all you care about, it’s a victory.

    1. A friends alternate explanation of the effect this decision could have:

      Congress decides that the 2nd Amendment is important enough that they want to give it some oomph. They pass a law that requires all Americans to buy a personal firearm. Failure to do so has no direct criminal penalty (you don’t go to jail for failing to buy a gun) however you will need to pay a tax to the IRS to make up for the added cost of protecting you… since you cannot defend yourself (as construed by your failure to own a handgun). You don’t have to own a gun, you don’t even have to like guns, but if you choose to not buy a gun… you will be taxed.

      That’s what happened today. Insert any product or service you can imagine.
      (Ignore the fact that if you fail to pay taxes you can go to jail… :\ )

      Hopefully any Progressives/Democrats that read this also can see that once you start down the path to the Dark Side of taxing people for NOT doing something…. forever will it dominate your tax forms….

      1. They’re moving the ball. They don’t care what the precedent is. The precedent won’t get abused as long as they’re in charge of the armory.

  5. “Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers.”

    Yes, because when you have a constitution stating that the federal government is to be one of few and enumerated powers, you need nine guys in black robes to “reaffirm” it.

    All hail SCotUS!

  6. They just legalized forcing people to purchase products/services and calling it a tax. Who cares what minimal good it did to the Commerce Clause. The overwhelming evil to come from that law blacks out any little white specks of good.

  7. Doesn’t the Medicaid portion of the ruling crack open a huge swath of cases that States could now litigate in regards to contingent funding?

    1. No it simply opens up a funding shortfall. SCOTUS upheld the Medicaid expansion but said the Feds could not force states to follow. States can abstain, but that doesn’t solve the problem of expolding health care costs, which will be exasparated by not all states participating. This will simply create the “need” for the implementation of a single payer system payed for by a “medical” tax which will be added to already existing payroll taxes.

  8. Your bad gut feeling is correct. The Supreme Court upheld Obamacare based soley on the 16th amendment. They have said the Commerce Clause doesn’t apply. Read the 16th amendment. It is very short and very scary. Congress can levy any tax it wants anytime it wants. If congress decides Libertarians are unwanted, guess what? Everytime we visit this site there will be an internet tax or a Fairness doctrine tax. Sound stupid? I agreed until today. SCOTUS just gave Congress and the President the perfect means to control the populace – via the pocketbook. There are NO limitations on the 16th amendment. None.

    1. I don’t think that’s correct at all. It was held to be an Excise Tax. It’s all under the general Taxation power, not the 16th.

      Admittedly, I did not RTFD.

      1. “An excise tax is a tax on use or consumption of certain products. Excise taxes are sometimes included in the price of a product, such as motor fuels, cigarettes, and alcohol. Excise taxes may also be imposed on some activities, like gambling. Excise taxes may be imposed by the federal government or by a state.”

        This cannot be a true excise tax because if the businesses choose to drop private insurance, and pay the “tax” they are NOT buying a product or even engaging in an activity. They are abstaining from an activity. So although I am sure many will want this to be an excise tax, in reality it can’t be.

  9. I guess it is marginally better due to that reasoning. Citizens are more sensitive to tax increases, right?

    I still feel sucker-punched, however .

    1. Citizens are more sensitive to tax increases, right?

      Citizens are more sensitive to the government taking money from your pocket and putting in its treasury. Yes. It’s more confusing when the government forces you to get your internet service through AT(ampersand)T.

      It tends to make people mad at AT(ampersand)T.

      1. One would think, yet we have ridiculous taxes now. Heck we pay payroll taxes for programs that we have been told we won’t get. Although many Libertarians rail against this, the other political parties whine about taxes yet say, “Don’t touch my Social Security!” Please – somebody – challenge me on this! I hope I am wrong, but my gut feeling is that we are hopelessly scr*ed.

        1. “I hope I am wrong, but my gut feeling is that we are hopelessly scr*ed.”


    2. For now they’re more sensitive to tax increases. Over time, this ruling will be used the justify the power of the federal government to mandate anything it wants to via a tax. This will become the norm just as invoking the power of the commerce clause has become the norm. They simply have a different avenue now to reach their ends.

  10. I suppose that there’s something in that the tax power is harder to utilize politically than the commerce clause.

    That said, it’s time to eliminate Congress’s power to tax individuals. They can’t be trusted with it.

      1. That is trully the only solution to today’s decision. My fear is that those who are out of work or needing public assistance have grown to a sufficient number as to make this impossible.

        1. We should try, anyway.

      2. The amendment should completely excise the existing tax power. It should replace it with the power to collect an explicitly defined amount (as part of a legally valid budget) from the states, dividing it up on solely in proportion to Congressional representation. It should specify that this will be the sole source of revenue collection for the government, aside from fines that are governed by full due process protections.

        1. A flat consumption tax is good. A full repeal of the 16th amendment better. A flat tax and a full repeal of the 16th amendment is best.

    1. “I suppose that there’s something in that the tax power is harder to utilize politically than the commerce clause.”

      That’s what I was thinking. I’m not holding out much hope, though.

  11. Congress can’t force me to buy a product through a direct penalty but can compel it through taxation. That’s not a limit that has any real meaning which is the reason Roberts allowed the penalty as a tax.

    1. Roberts was genius in crafting the liberal argument liberals weren’t making. But sure.

    2. Posting again because it must be posted:

      Paul’s Daughter: Hey Daddy, can I ride on the back of that boy’s motorcycle?

      Paul: Uhm, no, but you can ride on the back of his bicycle that has a 1000cc motor on it!

      Paul’s Daughter: Oh… ok, I’ll ride on his Bicycle then!

      *Paul and his daughter smile and nod at eachother as she backs through the front door.*

  12. I was reminded by the estimable Glenn Reynolds at Instapundit that a tax repeal requires the votes of but 51 Senators and cannot be filibustered.

    It might be fairly simple to get rid of the mandate politically, but Harry Reid has to be sent back into the minority first.

    1. Thus hastening the collapse of the status quo and the establishment of Totalitarian Care.

    2. Would this work? I understand this would do away with the mandate – uh – tax, but what about the other parts of Obamacare that will cost us anyway? Specifically regarding the costs of pre-existing conditions, etc.

  13. So a factotum of the Noble House of Bush writes a weasel’s too-clever-by-half decision. Full of strained arguments trying to let the powerful have their way while adhering to the fiction that the current regime is heir to a once-legitimate constitutional order.

    1. wef, you are a cunt. No question.

  14. If a majority of the Supreme Court adopts Barnett’s legal theory – a theory which was ridiculed and insulted when first put forward – doesn’t he have the right to crow a bit?

    1. Yep, I made the same point above. In fairness, it seems some of these folks don’t realize who Barnett is, or what his particular role was in all this.

  15. The Court has been tiptoeing around Wickard for decades, and eventually they are going to have to deal with its absurdity head-on. Probably not before this nation is bankrupt, though.

  16. “3. CHIEF JUSTICE ROBERTS concluded in Part III?B that the individual
    mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.”

    Has the Supreme Court ever “construed” a law to be Constitutional in the past? Is this as crazy as it sounds?

    1. Has there ever been a federal tax on inactivity or not buying a product – similar to this new “tax” on not buying health insurance? I am trying to think of one, but I can’t. The best example is car insurance, but that does not mandate coverage and is done on a state by state basis.

Please to post comments

Comments are closed.