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CATO Challenges Obamacare's Constitutionality

By    |   Thursday, 24 October 2013 02:25 PM

The CATO Institute hosted a presentation of the book Unprecedented: The Constitutional Challenge to Obamacare, by Josh Blackman, with commentary by Randy Barnett, one of the leading lawyers in the challenge brought by the National Federation of Independent Business (NFIB), and Jeffrey Rosen, head of the National Constitution Center, which was chartered by Congress to foster debate on issues related to the Constitution.

The event was remarkable for both the sharpness and civility of the debate between Barnett and Rosen.

Moderator Ilya Shapiro, a senior fellow in Constitutional studies at Cato, listed four "wins" that opponents achieved in the NFIB v Sebelius case, but he remains clearly vexed by Supreme Court Justice John Roberts' switch of votes and contrivance of a "head-scratching" tax as a means of upholding the law.

The four wins are as follows:

1. The government cannot mandate an activity in order to regulate it.

2. Legislation that is "necessary" may still be "improper," and therefore unconstitutional.

3. The taxing power is narrowed to the extent that any tax levied in connection with the legislation must be small and non-coercive.

4. For the first time, by a 7-2 vote, the Supreme Court ruled that the government cannot coerce states by attaching too many strings to the funds provided under the program.

Nevertheless, Shapiro lamented that by upholding the law, the Roberts court undermined trust that the Supreme Court would act in an impartial manner rather than bow to political pressure.

The inference is that the Roberts decision needed to uphold the law and came up with the "tax on inactivity" in spite of the fact that no Congress would have enacted such a tax. Shapiro mused that Roberts did not have to do this and argued that the reason for the Court to be independent of the other branches of government is to enable it to make tough calls like this one. Instead, Roberts opted to render a strategic decision dressed up on legal robes.

Next, Blackburn developed the theme that everything about Obamacare was unprecedented, including the fact that it passed on a straight party-line vote and that consumers would be forced to buy a commercial product. He recounted that CATO's Ed Crane had told Ed Feulner of The Heritage Foundation that the program, ironically conceived at Heritage, was unconstitutional.

Within nine minutes of the law's enactment, the first lawsuit against it was filed. A key issue was whether the fee imposed on citizens who did not comply with the individual mandate would be construed as a tax or a penalty. Supporters of the bill relied on New York v United States for the proposition that the fee could be construed as a tax for the express purpose of saving the Affordable Care Act (ACA).

Blackman concluded by listing some "lingering implications" of the litigation. First, Obama displayed once again his proclivity for attacking the Supreme Court, so dramatically displayed when he criticized the Citizens United ruling at a State of the Union speech and Judge Samuel Alito mouthed that the charge was not true.

Second, the case stands for Court standing as a bulwark regarding expansion of government power. (That is debatable and is being debated.)

Third, people assumed that the issue of constitutionality doesn't matter, but the success of the litigation proved them wrong. (Again, debatable.)

Finally, Blackman asserted that the case shows that the views of the American people matter and that the case "awakened a sleeping giant." (The question will be whether that giant is just tossing and turning or can really act effectively.)

The next speaker, Barnett, is the acknowledged godfather of the challenge to Obamacare. He referred to Blackman's interviews of principals in a November 2009 meeting at the Mayflower, known as the "Mayflower Compact," as an important source of background information on the case. Barnett also stubbornly chose to emphasize what are considered to be the positive aspects of the decision. He listed six principles he believes the case established:

1. The government cannot compel economic activity.

2. The government's power to solve problems is not a blank check.

3. The government cannot use the "necessary and proper" clause to end run limits on the power to regulate commerce.

4. Congress cannot avoid these limits by calling the fee a tax.

5. Any tax must be low enough to be noncoercive and preserve choice.

6. Congress' power to force a state to accept money can be coercive.

I disagree with most of these, citing with regret the same Wicker case that proponents of the ACA rely on for the proposition that the power to regulate commerce is virtually unlimited.

Furthermore, according to Barnett, the case "hobbled" Obamacare, by undercutting its legitimacy, making it an issue in the 2012 campaign, and limiting the penalty to a small, noncoercive amount. (I wonder how Barnett can say this given the feeble nature of the Republican campaign. When the results were in, no one was looking for explanations for its success.)

At the same time, Barnett admitted that conservatives can't count on the Supreme Court to save limited government, but he chided the 99 percent of law professors who scoffed at the notion that Obamacare could be successfully challenged. (98 percent of them are probably still scoffing.)

Barnett attributes the success he insists on claiming to the tactic of appealing to ordinary people by referring to the "individual mandate," an unprecedented report by the Congressional Research Service (CRS) that was helpful, and essential support from the Tea Party.

Finally, and somewhat dramatically, Rosen lavishly praised Blackman's book as the best source of material on the challenge to Obamacare, and he called it fascinating and riveting. He agreed with Blackman that the case supports the view that "ideas do matter."

Viewers would anticipate that a "but" was coming, and their expectation was confirmed when Rosen sarcastically congratulated the challengers "for coming within a hair's breadth of achieving their goal."

He then derisively pounced on assertions by the opponents of Obamacare that they were somehow defeated by some sort of conspiracy that played out at a party at George Will's house on a book by conservative Judge J. Harvie Wilkinson, attended by both Barnett and Rosen.

Supposedly Will had heard rumblings from Court clerks that Roberts was wavering on the case and needed "shoring up."

Rosen then turned to the crucial issue from his point of view. While denying that a timely article that put forward a theory close to that adopted by the Court, he took the opportunity to reassert that in upholding Obamacare, Roberts was vindicating his hero, Chief Justice John Marshall, and upholding the view that the Court should put institutional concerns ahead of any ideological view.

Thus, Barnett succeeded in changing the content of the debate, but he still lost. Rosen found Roberts' opinion consistent with Thomas Jefferson's concept of "twistification." (Jefferson was a mortal opponent of Marshall and did not believe the Court should have the power to invalidate acts of Congress.)

Rosen also cited remarks of Justice Ruth Bader Ginsburg that the expansive view of the Commerce Clause remains and that laws are supposed to respond to the moment. He also referred to an Appeals Court opinion by the conservative Judge Laurence Silberman (very disappointing to me) that also found Obamacare constitutional.

Perhaps this case can best be viewed as a "makeup" call for Citizens United and maybe even Bush v Gore. Opponents of Obamacare will continue to press their case in Congress and in the court of public opinion, but perhaps it would be wise to undertake a reality check and to proceed based on an understanding that for a variety of reasons, the Democratic base has been further energized since the 2008 campaign, whereas Republicans have lost so much ground that instead of bidding for control of the Senate, they face a difficult battle for control of the House.

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The CATO Institute hosted a presentation recently of the book Unprecedented: The Constitutional Challenge to Obamacare, by Josh Blackman.
Thursday, 24 October 2013 02:25 PM
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