'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


On June 28, the U.S. Supreme Court announced its eagerly anticipated decision in National Federation of Independent Business v. Sebelius, the case arising from the legal challenge to the Patient Protection and Affordable Care Act, a.k.a. ObamaCare. In his majority opinion, Chief Justice John Roberts rejected the Obama administration's claim that Congress may force Americans to buy health insurance under its power to "regulate commerce…among the several states" but found the mandate lawful under a different constitutional provision, Congress' power to "lay and collect taxes." "The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution," Roberts declared. "Granting the Act the full measure of deference owed to federal statutes, it can be so read."

Most opponents of the health care law promptly described the ruling as an unmitigated disaster, but not the libertarian legal scholar most closely associated with the case: Georgetown University law professor Randy Barnett. An attorney for the National Federation of Independent Business and one of the architects of the ObamaCare legal challenge, Barnett maintains there is a silver lining to Roberts' ruling. The chief justice "substituted a less dangerous tax power for a far more dangerous Commerce Clause power," Barnett said during an interview in reason's Washington, D.C., office in early July. Had the Supreme Court accepted the government's unprecedented theory of the Commerce Clause, Barnett explains, Congress would have had the power "to do anything it wants with respect to the economy." The upshot, he argues, is "we won in our effort to preserve the Constitution and in fact, we moved the ball in a positive direction."

Barnett, 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 (Princeton), sat down with Senior Editor Damon Root to discuss the ObamaCare ruling, the "echo chamber" of liberal academia, and whether the Constitution is consistent with libertarian principles. To see a video of this interview, go to reason.tv.

reason: Three days after the health care decision came down, you wrote in The Washington Post, "We lost on health care. But the Constitution won." What did you mean by that?

Randy Barnett: We brought the action against the mandate for two reasons. One is as a leverage point, our only constitutional leverage point, to defeat Obama­Care generally, and the second is because the theory by which the mandate was enacted, if it had been affirmed by the courts, could be a very dangerous theory. In fact, it would end the idea of limited and enumerated powers found in Article I of the Constitution. And so we're really fighting both against ObamaCare and for the Constitution. And what I was pointing out in the Washington Post piece is that we lost in our fight against ObamaCare—although in a moment I'll explain how we may not have lost as badly as some people think—but we won in our effort to preserve the Constitution, and in fact we moved the ball in a positive direction.

reason: The editorial page of The Wall Street Journal said Roberts' opinion "substituted one unconstitutional expansion of government power for another" and gave the federal government a vast new taxing power. Is that wrong?

Barnett: Their punch line is right. He did substitute one unconstitutional version for another, but he substituted a much less dangerous unconstitutional principle for a much more dangerous one. That's exactly the reason why this was a pretty big, important victory. What the justification for the law was supposed to be was the Commerce Clause. That's how the law is written, as a regulation of commerce. And if Congress can regulate you when you're not doing anything, that is a huge expansion. The theory under which that expansion is justified is essentially that Congress has the power to address all national problems. It's as though we have a national problems clause in the Constitution. That's what most law professors actually believe, and if that were true, that would be the end of the enumerated powers scheme.

What Chief Justice Roberts substituted for that—what he called a "saving construction," which he admitted was not the best reading of the text—was a tax power, but not the tax power that law professors have been advocating. Law professors said, "You could just do this whole thing under the tax power. You could just call it a tax; it'd be the same." But that's not what he said. He said, "Well, it's written like a tax, if you take the requirement out. First of all, you've got to take the requirement out." There was a requirement that everybody buy insurance. You've got to take that out because that's unconstitutional under the Commerce Clause. So [if] you take the requirement out, what you're left with is the penalty. And the penalty, he said, is so low that it could actually be a tax and not a penalty.

He said the mandate was not a penalty because it was so low. If it had been higher, it might have been a penalty, and it would have been unconstitutional because it would be coercive. What he really said was that Congress can tax inactivity as long as those taxes allow people to make a choice. But if that monetary exaction, he said, ever got so punitive that it would be coercive, in that case it would be a penalty and it would be unconstitutional—he implied that it would be unconstitutional; that wasn't before him.

So he substituted a less dangerous tax power for a far more dangerous Commerce Clause power. If the Commerce Clause power had been upheld, not only would the enumerated powers scheme have gone away, but Congress could have changed the law to punish this or any future mandates by very extensive penalties, like high fines and even imprisonment. One last way of explaining the difference: Imagine that all the drug laws were justified under the tax power and not under the commerce power. All the drug laws we have are Commerce Clause power. But imagine they were only justified under the tax power, under the principle that Chief Justice Roberts identified. That would mean the only thing the government could do to you for violating the drug laws would be to charge you a reasonable, modest tax. They couldn't even charge you a punitive tax, and they certainly couldn't put you in jail. If we actually achieved that reading of the drug laws, it wouldn't be a perfectly libertarian solution, but you'd have to open up the jails and let millions of people out under that reading of the Constitution.

reason: How unusual is Roberts' argument?

Barnett: He appears to be the only person in the United States and certainly the only legal commentator who holds the view that he announced last week. And that is this view that the Commerce Clause makes the mandate unconstitutional because it compels commerce in order to regulate it—that's unconstitutional. Therefore we have to adopt a saving construction to eliminate the requirement, and the penalty can be justified as a tax, which can't be more than a reasonable amount. That is unique to him. No one's ever identified that view before. No academic who supported the mandate has held that view. No judge who's considered this case has held that view. No other justice holds that view. This view is unique to Chief Justice Roberts and was unknown until he announced it. And that should tell you something about whether it was a legally compelled outcome, because if this was the obvious, best legally compelled outcome, someone would have held it before, and no one did.

reason: If it's not a legally compelled outcome, what's the explanation?

Barnett: It's circumstantial evidence that this was a politically compelled outcome. And in fact, I'm not exactly sure why that would even be so controversial to say since all the people on the left—from the president to the chairman of the Senate Judiciary Committee on down to columnists like Jeff Rosen—were urging Chief Justice Roberts to save the legitimacy of the Court by not going along with the 5-to-4 conservative-liberal decision striking down the president's signature legislation. [Those] are political considerations, none of which relate to the Constitution or even to Supreme Court doctrine about the Constitution. It all relates to political considerations, and if those were the considerations urged upon him that persuaded him to cop out in the way he did, then that makes it a political decision.

But I want to be clear about one thing. It's not like I'm saying it was a political decision in the sense of the five justices who voted to uphold ObamaCare were acting politically. I think four justices were acting on principle. They have a principled view that there's a national powers clause in the Constitution; that's their principled view. Then four justices were acting in principle against that view. One justice, the swing justice, his view was the one that was possibly motivated politically.

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.

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.