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Thursday, June 28, 2012

Architect Of Health Care Challenge Claims Own Victory

Randy Barnett, the architect of the challenge to the Affordable Care Act.

Thursday’s Supreme Court decision to uphold President Obama’s Affordable Care Act is a major victory for the Obama Administration.

But Randy Barnett, the Georgetown University Law Professor considered to be the libertarian architect of the challenge against the law was claiming victory too. The conversation between Barnett and Here & Now’s Deb Becker is excerpted below.

We understand that you’re claiming victory, too. Why is that?

It’s very weird. We won on the two major issues that we litigated in this case. One is that the individual mandate is beyond the power of Congress under the commerce clause. There were five votes; the majority of the court said we were right in every one of our arguments about the commerce clause power. Congress does not have the power to compel an individual to engage in commerce so that they may exercise it. We won on that issue. We also won on the issue of coercion of states. It’s unconstitutional to withhold Medicaid funding if the states don’t agree to expand their Medicaid coverage. That’s the first limit on the spending power that we’ve seen in decades. So we won on these two major issues, and then at the end of the day, the Affordable Care Act is upheld as a tax. The court rewrote the mandate as a tax and allowed it to be enforceable as a tax, so we lose on the outcome. It’s just very weird.

So what you’re saying is you had fought this on the individual mandate, whether the individual mandate could stand up under the commerce clause, and what they did was say its a tax.

Right. It’s a terrible disappointment, but the one way in which it is an improvement over finding a commerce power is something I’ve said all along. If it had been a commerce power, that means even though it was a money fine this time, in the future if you don’t do business with this company, Congress could put you in jail, which is how they enforce their commerce clause powers. In the future using the tax power, they’re limited to monetary sanctions like they have in this bill, which is that you give up a certain amount of money if you don’t get insurance. So it does limit the scope of what they can do and if its going to be a tax, you know taxes are unpopular and their is going to accountability in the future.

You are considering this a partial victory, what do you do from here?

It’s a victory for the commerce power. It’s a victory for limits on the commerce power. It means the Congress can’t use this power in the future, and as far as the Affordable Care Act goes, what happens next is what was going to happen anyway, and that is now the American people will decide if they approve of this tax that has been imposed upon them, at least according to the court. There was a reason the president didn’t call it a tax in the first place; taxes are pretty unpopular, and now there’s going to be a national election about whether this tax is acceptable. We already have one candidate running against it, and now we’ll have a vote on it.

A New York Times story about your role in all of this quoted some of your critics who said that your arguments were made up out of all whole cloth. What do you think now that this has gotten to the point that it has?

Every one of the arguments that I made was accepted by the court today. I didn’t say that much about the tax power going along, except for the fact that you’d have to rewrite the bill to get there, but every argument I made about the commerce clause was affirmed by Chief Justice Roberts in his opinion for the majority today. So that’s the reason why they say this kind of like “kissing your sister” or something; I’m not sure what the right metaphor. To win all your arguments and then lose on the outcome is a very strange result. It is a big day for the Obama administration, there’s no question about that, but its also a big day for limited government. It is now the law of the land that the individual mandate is outside the power of Congress to enact under the commerce clause.

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Robin Young and Jeremy Hobson host Here & Now, a live two-hour production of NPR and WBUR Boston.

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