Randy Barnett On Robert's Opinion

[Kathianne]

Randy Barnett is the one person most responsible as the architect of the legal case present to the SCOTUS on the constitutionality of health care reform put forward by the consortium of states.

Early days:

http://www.cato.org/publications/commentary/is-healthcare-reform-constitutional


Is Health-Care Reform Constitutional?

by Randy Barnett
<!--BIO-->
Randy E. Barnett is a senior fellow at the Cato Institute, teaches constitutional law at Georgetown University, and is the author of Restoring the Lost Constitution: The Presumption of Liberty.
Added to cato.org on March 22, 2010

<!--CITATION--> This article appeared in the Washington Post (http://www.washingtonpost.com/) on March 21, 2010.

...




Yesterday:

http://www.washingtonpost.com/opinions/randy-barnett-we-lost-on-health-care-but-the-constitution-won/2012/06/29/gJQAzJuJCW_story.html


We lost on health care. But the Constitution won.

By Randy Barnett, Published: June 29

The legal challenge to the Affordable Care Act, which I advocated as a law professor before representing the National Federation of Independent Business as a lawyer, was about two huge things: saving the country from Obamacare and saving the Constitution for the country.


On Thursday, to my great disappointment, we lost the first point in the Supreme Court’s 5 to 4 ruling (http://www.washingtonpost.com/politics/supreme-court-to-rule-thursday-on-health-care-law/2012/06/28/gJQAarRm8V_story.html?hpid=z1) to uphold the health-care law. But to my enormous relief, we won the second. Before the decision, I figured it was all or nothing. But if I had been made to choose one over the other, I would have picked the Constitution.
In November, voters can still fight Obamacare. Yet no single election could have saved the Constitution from the court...



I found a few old threads that might be worth reading:

http://www.debatepolicy.com/showthread.php?22976-The-States-Are-Throwing-A-Different-Kind-Of-Tea-Parties&highlight=randy+barnett

http://www.debatepolicy.com/showthread.php?29238-Proposal-2-3-State-Legislatures-Would-Be-Able-To-Repeal-Federal-Laws&highlight=randy+barnett

http://www.debatepolicy.com/showthread.php?29527-Challenges-To-Health-Care-Gaining-Momentum-In-Court&highlight=randy+barnett

[CockySOB]

Phillip Klein quoting Prof. Randy Barnett regarding the NFIB v. Sebelius ruling (http://washingtonexaminer.com/randy-barnett-says-roberts-tax-power-argument-is-lame-but-easily-fixed/article/2501028)

“Chief Justice Roberts rewrote the (health care) statute to change this from a requirement, or mandate, to an option to buy insurance or pay a penalty,” Barnett explained. “This is far less dangerous than had the mandate been upheld under the commerce power. Because a Commerce Clause regulation could be upheld up to and including imprisonment as drug laws are, but this power is limited to paying a tax (for those who pay taxes) and can be as politically toxic as taxes are.”


“Congress can’t do whatever it wants,” he said. “Under this ruling, Congress can’t put you in jail for violating a future economic mandate. This holding stands for that proposition. Congress also can’t coerce states by withholding all existing Medicaid funding unless they agree to new coverage. That’s a constraint the Court has never enforced before. And the Necessary and Proper Clause cannot be used to salvage these laws. And that’s a ruling we haven’t had before.”


“I always thought, these two rows rose and fell together — if we lost Obamacare, we’d lose the Constitution, and if we won on the Constitution, we’d win on Obamacare,” he said. “But if you ask me what I’d rather pick in court, which one I would win on, I’d pick winning on the Constitution and losing Obamacare, because the people can beat Obamacare, but if we had lost in court on the Constitution, it would take a generation of elections to get the Constitution back.”



“Four justices weren’t prepared to do that, one was,” Barnett said. “We had to hold all five. We start off with four against us, we knew that. Every time we have to hold all five. Here’s what it tells you – five justices are not enough. That’s your lesson…You need seven. If we have seven justices, Congress won’t mess with this. With five justices, sure.”

On the other hand he said, “This case reaffirms everything we said about constitutionally limited government. Everything that the other side has said was frivolous has been affirmed by the Court. It is now the law. It will be taught in every constitutional law class. You think anybody is going to spend time teaching this tax power argument in con law class?”

In case anyone has had any doubts, I've been reading Prof. Barnett's material for years over at the Volokh Conspiracy (http://www.volokh.com). All of the Conspirators have been weighing in regularly on the legal and Constitutional issues of the day, and I encourage everyone to visit.