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Professor Randy Barnett on the legal maneuvers of Obamacare

Tuesday, September 27, 2011

HH: Joined now by Georgetown University professor of law, Randy E. Barnett. He is the Carmack Waterhouse Professor of Legal Theory. He’s the author of a tremendous casebook on Con Law, prolific writer on subjects far and wide, but he is also involved in the Obamacare litigation. Professor Barnett, welcome back to the Hugh Hewitt Show.

RB: Oh, it’s great to be here, Hugh. You’ve got great bumper music, by the way. I’ve been enjoying listening to the music while on hold.

HH: That’s a great production staff. Tell me something, Randy, what is your association with the case so we make sure people know what your role is, before we talk about it.

RB: Yes, well for about a year, I was just writing amicus briefs and op-eds, and writing articles about it. But for the last, since at least May, I have been one of the lawyers representing the National Federation of Independent Business in the case that’s pending in the 11th Circuit, along with the 26 Attorneys General lawsuit. So it’s 26 AG’s together with the National Federation of Independent Business. And I work with Jones Day in representing them. So that’s the case that was won, where the mandate was held unconstitutional by that circuit court of appeals. And that’s the case that’s there’s news about today.

HH: Well, fill in the audience on what we learned today, and what you think happens next.

RB: Well, this is the one case where we’ve prevailed so far at the court of appeals. We have lost at another court of appeals. The mandate challenges have lost, or they’ve been dismissed for other reasons. But this is the case in which we’ve prevailed. And the government had the option of going to what’s known as the full circuit. It’s called en banc review, which means all the judges review the decision of the panel that decided our case, and they had until today to decide whether they were going to make that motion, and they decided not to, which means that we are going to petition the Supreme Court to hear the parts that we lost, and they’re going to petition the Supreme Court to hear the parts that they lost, which is about the mandate. And so it makes it much, much more likely that the Supreme Court will hear the case this year, and that they’ll hear our case.

HH: Now Professor Barnett, what would you estimate to be a reasonable schedule, that if you had to figure out, you’re advising the client, I think we might end up filing our cert petition here, and there…and after all the briefs are filed, getting an answer from the Court…

RB: Right.

HH: What’s the schedule in your mind?

RB: Well, our cert petition is ready to go, and it’s going to be filed this week. We’re expecting the government to file a cert petition in the same time frame. And we would then be looking at the conferences, the judicial conference, when they decide whether to take us, would be next month. And if they decided to take us, we could have oral arguments scheduled for, say, January or February. And we would expect the decision to be reached, to be handed down on the last day of the term in June. So almost no matter when we hear the case, it’s going to be handed down on the last day of the term in June.

HH: Randy Barnet, as well, I’m teaching Lopez and successor cases tomorrow, to my Con Law students, and I have to put this in the context of that. Would you set up what the heart of this issue’s going to be, the heart of your briefs, the heart of the arguments?

RB: Well, Hugh, as you know, I represented Angel Raich in the Raich case, which you’re probably also going to be teaching.

HH: Yes.

RB: And both in the Lopez case and the Raich case, the Court has said that Congress could only reach intrastate activities if it’s economic in nature. And in our case, we had argued that our clients were not engaged in economic activity, but the Court disagreed with that, and that’s why we lost. So in this case, we’re claiming that the government is reaching in activity. We’re claiming that they’re making people engage in economic activity, not regulating or prohibiting them from doing so. And that’s something, the government’s doing something here they’ve never done before. In fact, all the courts who have heard this case, Hugh, whether they’ve upheld the mandate, struck it down, or said we can’t decide because of jurisdictional issues, they’ve all agreed nothing like this has ever happened before. There is no Supreme Court precedent that allows Congress to do this. And now, the Supreme Court is going to have to decide if they want to allow Congress this additional new power they’ve never had before, the power to make every man, woman and child in the country buy, do business with a private company, and do so for the rest of their lives.

HH: Now I’ve heard Attorney General Cuccinelli of the great sate of Virginia argue that after a very searching review of Justice Kennedy’s opinions, he believes Justice Kennedy will side on the side of those who believe that the Congress is putting too much of a burden on the Interstate Commerce Clause. What do you think about Justice Kennedy in particular, Randy Barnett?

RB: Well, I don’t comment on any of the justices in particular. I do think that this case is going to be a 5-4 case. Whether we win or whether we lose, it’ll be 5-4. and I’m not exactly, I wouldn’t want to comment on any individual judge. I do think that as long as this law remains as unpopular as it is, and as long as when they strike down the mandate, they don’t have to strike down any other law that’s ever been enacted, because there’s never been another law like this, I think that puts us in a pretty good position for the Court to say this far and no farther, you’ve gone too far.

HH: Now Professor Barnett, Justice Breyer was kind enough to come into this studio a couple of weeks ago, and spend a couple of hours talking about his book, and about the Court generally. He makes a passionate argument in his book, Making Our Democracy Work, and he made it on this program, that Congress really ought to be the one who is mediating the various demands about the national economy. And he also argues, though, that the United States Supreme Court patrols the borders of the Constitution. How can you reconcile those in this case, because if there is not a Commerce Clause limit, there is no border. But if Congress doesn’t get to make this kind of decision the way that it did, their power is significantly limited in a very well-developed economy.

RB: I totally disagree that this is going to limit Congress’ power. I wish it would, Hugh. I wish a victory here would roll back Congress’ power, but it won’t. It’ll just basically say that a power that they’ve gone 230 years without ever exercising before, which is the power to make everybody do business with a private company, that power they’ve never exercised before, they’re not going to be able to exercise in the future. That’s all it’s going to say. And so it’s going to be a very important principle to establish that there still are limits. And if we lose this case, it’s going to be really, really bad. But if we win the case, it’s going to basically preserve the status quo, which is not where I think it ought to be. I think we ought to roll back federal power, but this case is not the case to roll back federal power. This is the case to say this far and no farther.

HH: It would be a fairly robust exercise of Supreme Court authority, though, wouldn’t it? It would be a strike down…have we seen anything like it since, you know, Schechter?

RB: Well, look, I mean, in 60 years, the Court didn’t strike down any laws whatsoever, 60 years, which led everybody to believe they never would. And then in Lopez, they struck down the gun-free school zone act, and in Morrison, they struck down the violence against women act. And those were considered kind of one-off’s, because they didn’t seem to have far-reaching implications for other laws, which they didn’t. And that’s exactly what we face here. We face a law that if they strike it down, it won’t have very many implications for other laws, which makes it more likely that they will. And it is a big case, but you remember, this law is very unpopular. This is a law, the first time in the history of the country, Hugh, that a major piece of social legislation was passed without bipartisan support.

HH: Will that be part of your argument?

RB: No, no. It’s part of the background. It is not part of the legal argument. But it is one of the things that would lead the Court to believe that they could make this statement and strike this law down, and people are not going to be standing out with pitchforks outside the Supreme Court complaining. In fact, there’s going to be a large segment of this country that’s going to be praising the Supreme Court, not condemning them.

HH: I agree, it’s an enormous factor that very few people are going to consider. We’ve got 45 seconds, Randy Barnett, please come back and talk about this, but quickly, your assessment of the severability issues here?

RB: It’s very complicated. I honestly don’t know. I mean, there’s three options. One is this mandate is completely severed from all the other part of the bill. One is that the whole bill goes, like the Florida judge said. Or the government’s position was that the insurance regulations can’t be separated from the mandate, but the rest of the bill can. I don’t know. I know what the Court should do, but I don’t know what they will do.

HH: Professor Randy Barnett, I’ve linked your website over at I hope you post up on this, and I think the National Federation of Independent Business has done a very wise thing to bring you on board. Thanks for joining us today.

End of interview.

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