Tag: randy barnett

Randy Barnett and the Health Care Overhaul

By
David Boaz

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.

Topics: 
Health Care, Law and Civil Liberties

ObamaCare in Four Words

By
Caleb O. Brown

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.

Topics: 
Government and Politics, Health Care, Law and Civil Liberties, Tax and Budget Policy

Schools for Misrule Is Off To the Printer

By
Walter Olson

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.

Topics: 
General, Law and Civil Liberties

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

By
Ilya Shapiro

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.

Topics: 
Government and Politics, Law and Civil Liberties

Conservatives vs. Libertarians on Judicial Activism

By
Ilya Shapiro

I should have posted this earlier, but if anyone interested in legal issues – should be everyone given that most things coming out of Washington these days have constitutional defects – hasn’t yet read Damon Root’s cover story in the July issue of Reason magazine, drop what you’re doing now and do so.

While not a J.D. – or perhaps because he isn’t – Damon paints a completely accurate picture on the differences between conservative and libertarian approaches to constitutional interpretation and judicial philosophy.  And I don’t mean a rehash of debates on social issues except in legalese; there are real subtleties involved, particularly when most people adhering to either of these camps call themselves “originalists” of one stripe or another.  Damon’s article is both deep and wide, surveying the landscape of relevant legal thinkers and explaining to non-lawyers why all this is so, so important.  (And no, I personally am not featured.)

What is more, you can now also watch Damon discussing his article and reporting in this area:

This is groundbreaking and important journalism.

Topics: 
Government and Politics, Law and Civil Liberties

Obama Flip-Flops on the Individual Mandate (Again)

By
Michael F. Cannon

The individual mandate has been a tricky issue for Barack Obama, leading him to make some impressive self-reversals.

When campaigning against Hillary Clinton for the Democratic presidential nomination, Obama came out hard against an individual mandate to purchase health insurance, alleging that Clinton would garnish workers’ wages and that Massachusetts’ individual mandate has left many residents “worse off”:

He even dismissed an individual mandate by saying, “If a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house”:

Once president, of course, Obama endorsed and signed into law both an individual mandate and an employer mandate.

During the debate over ObamaCare, Obama likewise mocked George Stephanopoulos – no really, he mocked the poor guy– for suggesting the individual mandate is a tax. Obama didn’t mince words: “I absolutely reject that notion.” The relevant exchange begins three minutes into this video:

Now, the Obama administration says the individual mandate is a tax. According to The New York Times:

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”…

Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.

(My colleagues Randy Barnett and Ilya Shapiro explain how this flip-flop shows the constitutional challenges to ObamaCare aren’t quite as frivolous as supporters claim.)

The next time Obama is in the mood to reverse himself on the individual mandate, he might consider this statement from June 2009:

When you hear people saying, “socialized medicine,” understand that I do not know anybody in Washington who is proposing that–certainly not me.

When the government makes health insurance compulsory, that is socialized medicine.  (Why else would ObamaCare win plaudits from Fidel Castro?) It would be nice to hear the president admit it.

Topics: 
Government and Politics, Health Care

Government Essentially Concedes Commerce Clause Challenge to Obamacare, Calls Individual Mandate a Tax

By
Ilya Shapiro

This Sunday’s New York Times had a fascinating story about how the defense of the individual mandate has shifted from the Commerce Clause – even though the law itself is replete with boilerplate about “economic activity” – to Congress’s taxing power.  Here’s the first paragraph (h/t Jonathan Adler):

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

This is huge.  After months of arguing that cases like Wickard v. Filburn (Congress can regulate the wheat farmers grow for personal consumption) and Gonzales v. Raich (Congress can regulate personal growth of state-allowed medicinal marijuana) justify the requirement that every man, woman, and child buy a health insurance policy, government lawyers (and spokesmen) now say the mandate is just a regulation accompanying a lawful tax (the penalty you pay for not buying insurance).  After I spent most of April and May criss-crossing the country debating the constitutionality of Obamacare, it turns out that my opponents were barking up the wrong tree!

But don’t just take it from me.  Here’s Georgetown law professor and Cato senior fellow Randy Barnett’s dissection of the Times story and its significance.  An excerpt:

Now there are cases that say (1) when Congress does not invoke a specific power for a claim of power, the Supreme Court will look for a basis on which to sustain the measure; (2) when Congress does invoke its Tax power, such a claim is not defeated by showing the measure would be outside its commerce power if enacted as a regulation (though there are some older, never-reversed precedents pointing the other way), and (3) the Courts will not look behind a claim by Congress that a measure is a tax with a revenue raising purpose. 

But I have so far seen no case that says (4) when a measure is expressly justified in the statute itself as a regulation of commerce (as the NYT accurately reports), the courts will look look behind that characterization during litigation to ask if it could have been justified as a tax, or (5) when Congress fails to include a penalty among all the “revenue producing” measures in a bill, the Court will nevertheless impute a revenue purpose to the measure. 

Now, of course, the Supreme Court can always adopt these two additional doctrines. It could decide that any measure passed and justified expressly as a regulation of commerce is constitutional if it could have been enacted as a tax. But if it upholds this act, it would also have to say that Congress can assert any power it wills over individuals so long as it delegates enforcement of the penalty to the IRS. Put another way since every “fine” collects money, the Tax Power gives Congress unlimited power to fine any activity or, as here, inactivity it wishes! (Do you doubt this will be a major line of questioning in oral argument?) 

Well, at least they’re not (yet) relying on Rep. John Conyers’s “Good and Welfare Clause.”  (Conyers, remember, is a lawyer and chairman of the House Judiciary Committee).

For a concise legal argument against the use of the taxing power to justify the individual mandate, see Cato’s amicus brief supporting Virginia’s challenge to the health care reform.  And for a great resource on all the state lawsuits against the new law, see this new blog/website run by Santa Clara law professor Brad Joondeph.

Topics: 
Government and Politics, Health Care, Law and Civil Liberties

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