Tag: randy barnett

How ObamaCare’s Victories Count Against It In Sissel v. HHS

Randy Barnett has an excellent post at the Volokh Conspiracy about his recent amicus brief requesting the D.C. Circuit grant en banc review of Sissel v. HHS. (Sound familiar?Sissel challenges the constitutionality of ObamaCare’s individual mandate – which the Supreme Court ruled could only be constitutional if imposed under Congress’ taxing power – on the grounds that this, ahem, tax originated in the Senate rather than the House, as the Constitution’s Origination Clause requires.

A three-judge panel of the D.C. Circuit ruled against Sissel. The panel’s rationale was that the Patient Protection and Affordable Care Act was not the sort of “Bill[] for raising revenue” that is subject to the Origination Clause, because the purpose of the PPACA is to expand health insurance coverage, not to raise revenue. Barnett explains why this reasoning is nutty. Under the Sissel panel’s ruling, no bills would ever be considered revenue measures because all revenue measures ultimately serve some other purpose.  The panel’s interpretation would therefore effectively write the Origination Clause out of the Constitution. Barnett argues instead that the courts must recognize the PPACA as a revenue measure subject to the Origination Clause because the Supreme Court held the taxing power is the only way Congress could have constitutionally enacted that law’s individual mandate.

A shorter way to describe Barnett’s argument is that he turns ObamaCare supporters’ own victory against them: “You say the individual mandate is constitutional only as a tax? Fine. Then it’s subject to the Origination Clause.”

Barnett again corners the D.C. Circuit with another sauce-for-the-gander argument on the procedural question of whether that court should grant en banc review of its panel decision in Sissel:

Of course, en banc review is rarely granted by the DC Circuit, but given that it recently granted the government’s motion for en banc review of the statutory interpretation case of Halbig v. Burwell presumably because of the importance of the ACA, the case for correcting a mistaken constitutional interpretation is even more important, especially as the panel’s reasoning has the effect of completely gutting the Origination Clause from the Constitution…

Or, the shorter version: “You guys think Halbig is worthy of en banc review? Fine. If the Sissel panel erred, the downside is even greater.”

We’ll see whether the D.C. Circuit thinks the Constitution is as worthy of its protection as ObamaCare.

(Cross-posted at my comment-friendly blog, Darwin’s Fool.)

Ratifying NSA Spying, a Court Calls FISA ‘Courts’ Into Question

Two weeks ago, when D.C. District judge Richard Leon ruled that mass government surveillance of Americans’ telephone calling was likely unconstitutional, there was some well-poisoning about his opinion being “passionate.” The implication, of course, was that he was not being suitably judicial. The same could be said of this week’s ruling by Judge Pauley of the U.S. District Court in New York. When the first sentence intones: “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is,” and when the first citation is a “See generally” to the 9/11 Commission report, these are not signs that you’re about to get dispassionate application of law to facts.

Judge Pauley’s use of the 9/11 Commission report to argue that NSA data collection could have foiled the 9/11 plot is belied by the report’s clear statement with respect to Khalid Al-Mihdhar: “No one was looking for him.” (page 269) In our paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” Jeff Jonas and I detailed ways many of the 9/11 terrorists could have been found had anyone been looking. The argument that NSA spying would have prevented 9/11 is not a strong one.

But passions pitted against one another is just one of the symmetries between the two rulings. Judge Leon distinguished Smith v. Maryland. He believes that the Supreme Court case allowing the use of phone call information to convict a suspected burglar and obscene phone caller does not ratify the collection of phone calling information about every innocent American. Judge Pauley treated Smith v. Maryland as controlling. If one burglar in Baltimore doesn’t have a Fourth Amendment interest in his phone calling data, 200 million Americans don’t either. We have appeals to sort these things out, and Judge Pauley’s ruling makes it more likely that such an appeal will reach the Supreme Court, which is good.

The interesting thing in Judge Pauley’s ruling is ammunition he offers to critics of the panels of judges created by the Foreign Intelligence Surveillance Act. People often refer to them as the “Foreign Intelligence Surveillance Court” or “FISC.”

While the FISC is composed of Article III judges, it operates unlike any other Article III court. Proceedings in Article III courts are public. And the public enjoys a “general right to inspect and copy public records and documents, including judicial records and documents.” (citation omitted) “The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.” (citation omitted)

Later, he writes:

The two declassified FISC decisions authorizing bulk metadata collection do not discuss several of the ACLU’s arugments. They were issued on the basis of ex parte applications by the government without the benefit of the excellent briefing submitted to this Court by the Governent, the ACLU, and amici curiae. There is no question that judges operate best in an adversarial system. “The value of a judicial proceeding … is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.” (citation omitted) … As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decision [sic] without the benefit of adversarial process. Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes.

This echoes an argument Randy Barnett and I offered in our brief to the Supreme Court about NSA spying. These so-called ‘courts’ that administer NSA spy programs lack many of the hallmarks of a true court, and their use to dispose of rights that protect our privacy is a violation of due process.

There will be much more to come in the judicial path of the NSA spying debate. The legitimacy of FISA panels should be a part of that discussion.

NSA Spying in the Courts

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel.

Cato senior fellow and Georgetown University law professor Randy Barnett joined me this week on a brief to the Court urging it to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation.

Randy Barnett and the Health Care Overhaul

Cato senior fellow Randy Barnett is featured on the front page of today’s New York Times as the chief academic critic of the constitutionality of the 2010 health care law. He spoke at Cato on that topic last Friday; video here.

The article notes his longstanding interest in the Ninth Amendment, the subject of his book published by Cato and the George Mason University Press in 1989, The Rights Retained by the People: The History and Meaning of the Ninth Amendment.

Professor Barnett also cooperated with Cato on his most recent book, Restoring the Lost Constitution: The Presumption of Liberty.

ObamaCare in Four Words

Cato Senior Fellow Randy E. Barnett argued on behalf of Angel Raich at the Supreme Court in 2004. It was the last big case at the High Court dealing with broad federal assertions of power under the Commerce Clause. On Friday at the Cato Institute’s new F.A. Hayek Auditorium, Barnett laid out the four words that define ObamaCare’s individual mandate: unprecedented, uncabined, unnecessary, and unconstitutional.


Barnett and I chatted for a bit about whether Antonin Scalia is bound to uphold the Affordable Care Act (ObamaCare) based on his opinion in Raich.

You can watch the full event from Friday here.

Schools for Misrule Is Off To the Printer

I’m happy to report that my forthcoming book on bad ideas from the law schools, Schools for Misrule, just went off to the printer. Encounter Books commissioned a terrific jacket design (by Tamaye Perry) which you can preview here. Here’s the description from the book’s jacket:

Schools for Misrule: Legal Academia and an Overlawyered America

By Walter Olson

From Barack Obama (Harvard and Chicago) to Bill and Hillary Clinton (Yale), many of our national leaders today emerge from the rarefied air of the nation’s top law schools. The ideas taught there in one generation often wind up shaping national policy in the next.

The trouble is, as Walter Olson explains in this book, our elite law schools keep churning out ideas that are catastrophically bad for America. Rights to sue anyone over anything in class actions? Hatched in legal academia. Court orders mandating mass release of prison inmates? Ditto. The movement for slavery reparations? Court takeovers of school funding, at taxpayers’ expense? It’s not by coincidence, Olson argues, that these bad ideas all tend to confer more power on the law schools’ own graduates. In the overlawyered society that results, they are the ones who become the real rulers. And the worst is yet to come, the book demonstrates, as a fast-rising movement in the law schools demands that sovereignty over U.S. legal disputes be handed over to international law and transnational courts.

Some imagine that the law schools possess a finer, purer moral sensitivity than the everyday America outside their walls. (“Welcome to the Republic of Conscience!” Yale Law dean Harold Koh announced to incoming students.) But as this book shows, the pipe dream of training philosopher-monarchs not only leads to one policy disaster after
another, but distracts law schools from the most useful function they can serve: training competent, ethical and suitably humble lawyers for tomorrow.

On the back of the jacket are terrific blurbs from star law professor Randy Barnett of Georgetown (famous most recently for the ObamaCare court challenge), bestselling author and attorney Philip K. Howard (The Death of Common Sense), and perennial libertarian TV hero John Stossel.

You can pre-order the book at great prices from Amazon, Barnes & Noble, or your favorite bookseller. Publication date is February 15, so copies should arrive before you know it.

Yes, Virginia, Congress Is Not Santa Claus and Is Bound by the Constitution

The legal battle against Obamacare continues. In June, a district court in Richmond denied the government’s motion to dismiss Virginia’s lawsuit (in opposition to which Cato filed a brief).  Despite catcalls from congressmen and commentators alike, it seems that there is, after all, a cogent argument that Obamacare is unconstitutional!  

Having survived dismissal, both sides filed cross motions for summary judgment—meaning that no material facts are in dispute and each side believes it should win on the law.  Supporting Virginia’s motion and opposing the government’s, Cato, joined by the Competitive Enterprise Institute and Georgetown law professor (and Cato senior fellow) Randy Barnett, expands in a new brief its argument that Congress has gone beyond its delegated powers in requiring that individuals purchase health insurance.

Even the cases that have previously upheld expansive federal power do not justify the ability to mandate that individuals buy a product from a private business.  Those cases still involved people that were doing something—growing wheat, running a hotel, cultivating medical marijuana.  The individual mandate, however, asserts authority over citizens that have done nothing; they’re merely declining to purchase health insurance.  This regulation of inactivity cannot find a constitutional warrant in either the Commerce Clause, the Necessary and Proper Clause, or Congress’s taxing power.  Such legislation is not “necessary” to regulating interstate commerce in that it violates the Supreme Court’s distinction between economic activity (which often falls under congressional power as currently interpreted) and non-economic activity (which, to date, never has), it is not “proper” in that it commandeers citizens into an undesired economic transaction.  

Finally, the taxing power claim is a red herring: (a) neither the mandate nor the penalty for not complying with the mandate is a tax, and is not described as such anywhere in the legislation; (b) even if deemed a tax, it’s an unconstitutional one because it’s neither apportioned (if a direct tax) nor uniform (if an excise); (c) Congress cannot use the taxing power to enforce a regulation of commerce that is not authorized elsewhere in the Constitution.

The district court will hear arguments on the cross-motions for summary judgment in Virginia v. Sebelius later this month and we can expect a ruling by the end of the year. 

Obamacare delenda est.