Job. It is part of the bigger society they are separate enough time why is that one does not infringe upon the really other than us, a lot out there. So i think because of that we have benefited year after year after year. I think now people sort of look to us says that is a nice thing. You can watch this and other programs online. Trevor burris and a panel talk about the impact of their arguments on the obamacare debate both in public in the courts which is about an hour and 15 minutes. We are here today to talk about a fascinating book about a fascinating case, the National Federation of independent businesses braces subereous better known as the obamacare case. As i read this book i thought that i was really watching some very, very smart people who obviously respect each other but who are in no way, shape, or form shy about challenging each other and they would advance and refine their arguments as the but progressed covering many facets of the obamacare case, some of which they will discuss today. I will introduce all of the speakers in the order in which they will speak and we will start off with trevor burris, the editor of the conspiracy against obamacare, a Research Fellow at the Cato Institute center for constitutional studies civil and criminal law, legal and criminal philosophy in legal history. Undergraduate degree at the university of colorado at boulder and law degree at the university of denver. In addition to providing a brief overview of the book trevor will talk a little bit about how some of the current problems we have been reading about with respect to the Affordable Care act relates to the case. Next we will hear from the a professor at George Mason University school of law where research focuses on the constitutional law, property law, and the focus of popular political participation in the application for a constitutional democracy. He get his degree from amherst, masters degree from harvard and jurist doctorate from yale. He clerked for the fifth circuit judge jerry smith and in addition, by the way, to a conspiracy against obamacare, the author of another book democracy and political ignorance, weissmuller government is smarter and his articles have appeared in many scholarly journals. Going to discuss competing constitutional vision is that were at play in the case and also about the role of the conspiracy in terms of influencing the debate that surrounded the case. We will hear from their research professor. After graduation he parked on the Third Circuit Justice Anthony kennedy, a nationally recognized scholar fifth. The department of justice. He argued many cases including the u. S. Supreme court, and his articles have appeared in top legal journals. It described as a oneman court with respect to this debate will discuss what role they played in the runup to this case. And last but certainly not least we will hear from randy barnett, a professor of legal theory at Georgetown University theater. A graduate of Northwestern University and Harvard Law School and began his career as a prosecutor in the Cook County States Attorneys Office in chicago in 2004, the medical marijuana case which featured rather prominently in terms of the analysis for the obamacare case, author of over 100 articles is as well as nine bucks and will discuss the role of politics played in the litigation join me and will turn over. [applause] thank you for putting this on and helping out. I also want to think they can spur tors. David bernstein, my professor in law school for giving me an opportunity to work on this book which was incredibly fun. I have the interesting experience of coming out of law school and working on the base Supreme Court case in 50 years which was somewhat surreal. I am going to give a few brief comments. And lecture about this throughout the country. Sometimes i feel like after return people to civics class. Kneele of the problems we have that the constitution his biggest people forgot not civics , particularly politicians to view the constitution as and admit to making the constitution awesome. First want to discuss the we have a frame of reference or does not work at the case may be. How this plays into the way the case worked out. Obamacare is a political subterfuges built on three pillars in order to create the functional equivalent of a single payer system. Consuming this healthcare. The biggest mistake was not selling it as a redistribution this lot. People will start finding out that this is a redistribution this law and the reason theyre paying more is exactly why. It is a feature of the law which will come back and bite him in the 2014 election in particular which is with the individual mandate does, says the rest of the cost. There are some other taxes that will not get into, but that is the general idea. The next question is can congress do this under the Congress Power in particular which i will not get into more of the nuances. But going back to the class, i always thought this was simple. Of lecturing to a bunch of germans about this what is wrong with having more health care . What is wrong with this being the case . The way you think you but this is wrong. How would you feel it brussels to cover your health care, not related to my brussels. They had power over that. Why dont they . They kind of do. That is the question that we dealt with for hundreds of years. Whenever it is conveyed is a type of thing. Increasingly we need control over all of sex in this zone in order to make our carefully crafted schemes work better which is the way that it extends and will happen in europe. Mark my words. The laws of amsterdam, the manufacturing loss of germany, all of those are impediments to some sort of impact this scheme. And when they come to us and say what do we do about this, brussels is saying that these local laws are an impediment to congress. Yes, they are, because you cannot make this argument. If someone comes along and says we have power over individual people who have not purchased healthcare because they have an effect on commerce the only thing we can say is yes, they do or, does. So we have to articulate a vision assess individual people not purchasing health care is the type of thing the congress does not apply to. But theyre not the effect. Because if your power is limitless. We did win that battle. I want to make a few less, its about where we are Going Forward. This second worst with for be the law to kick out. The second would be for the Supreme Court to give choices to people to Purchase Health care not and states to expand medicare. That was the second worst thing that could have happened. As i have explained the law the way it works, the mandate is like a no parking sign that is not actually and no parking signs. That means that they have to reassess the law because they know that it no longer has a legal command awarded needed to work even if the was going to work. Now was the worst thing that could have happened. The challenges that we have Going Forward is to articulate a vision this is the reason this law did not work was not because you did not have enough power but because you took too much. That is the fight we are always then. The reason it failed is because the Supreme Court gave them a choice. There was not enough power. And in this context the loopholes are your freedoms which are not loopholes in a system of limited government which is the fight that we have Going Forward. It will collapse. Thank you. [applause] i would like to start by thanking the Heritage Foundation for organizing the seventh in all of you for braving the elements for coming here and especially trevor for doing all the painful work of avid editing, not an easy task. It is like herding cats, only perhaps even worse. In my talks would like to start by focusing on the clash of constitutional vision that this case represented and then i will go on and talk at the end about the role of the conspiracy in the public debate over this issue. Ultimately this case developed into a clash between two competing visions of the constitution and federalism. On the one hand you had what might be called the new deal or post new deal vision by the majority of legal academics, and it holds that especially after the new Deal Congress has and should have the power to regulate virtually anything that affects the National Economy in any way, otherwise we simply would not be able to deal with a modern, complicated, interconnected economy and in particular this should be left political process rather than for many Different Reasons in the way that congress or federal bureaucracy does. On the other hand you have an opposing vision that says that congress should be limited by the list of enumerated powers that is enumerated in article one of the constitution and the judiciary should enforce the boundary of those powers and holes that it is a good thing in the real world to enforce the boundaries because having the federal government with to much power is harmful. And i think it became clear that the debate over the individual mandate in particular was, in fact, an unavoidable clash between competing theories of how to interpret the constitution because the argument for the mandate under the Commerce Clause is the at the Head Congress can regulate people who have no Health Insurance because not having Health Insurance in the aggregate affects the National Economy and the problem is, of course, the same could be said for a decision to do anything or not do anything anywhere else in human life or in american society, for example, it certainly applies to the famous sparkly analogy this test during debates. That will likely reduce your economic productivity and have an affect on the economy, and i can make this same analysis for pre much anything else the you can think of and therefore this core argument for the mandate in essentially has no limit. Moreover it makes many of the other powers of congress in article one of the constitution redundant. If the enable congress to regulate or restrict anything that might have an effect on the Economy Congress does not need the power to coin money. After all, it has an effect on the economy. It does not need death power to raise moneys. I can say similar things for virtually everything else. Recognizing this problem, the federal government and other defenders of the men they tried to make a series of what in the book i Call Health Care special arguments. A special argument. In the book we go through all these. Health care especially because a light with most other products everyone must purchase the some point in their lives. To some extent this is true, but the focus is shifted from Health Care Insurance tell of care which is a broader category. I could also justify the barkley mandate. Not everyone likes property as much as i do. Many people do not purchase it, but everyone is in the Broader Market of food. The market for food is more difficult to avoid the market for health care. Try avoiding if you dont believe me. And i can make a similar analysis for the purchase of virtually any other product. Maybe for all of us, you do get information through some source somewhere. We can justify a mandate requiring all of you to read the conspiracy every day by the same kind. I like that idea. That mandate. So you get the point. While the government created various clever, sometimes not so clever special arguments ultimately it fell apart. I would like to next talk about an asset of the case that got a lot of attention from legal experts, the necessary and proper clause. Even if the mandate was not authorized by the Commerce Clause alone, maybe it could be authorized by the Commerce Clause combined. The latter clause gives congress the power to enact any laws that a necessary and proper. Other powers granted to congress. Going back all the way to the famous 1819 case the Supreme Court has defined necessary extremely broadly as anything a disease will or convenient and we knew that it was very unlikely they would overrule that definition of necessary even now we have had problems. We were not going to win. However, we felt and there is a lot of evidence to support the ban necessary and proper clause required not only of the law be necessary that proper which actually has led several of the Founding Fathers to say the question is what is proper mean be argued that at the very least proper means the you cannot justify a lot biologic. As James Madison put it, whenever meaning it may have, none can be admitted that will give an unlimited discretion to congress. The federal government theory would in fact give them that the exact of limited discretion which is why five justices ended up rejecting their necessary and proper argument can give the most thorough treatment. Robber may enable you to create some sort of ancillary power to one of the enumerated powers but not to create a blatant independent power. In other words, it can be used to pin the tail on a dog but not to pin a dog on a tale which is what the federal government was trying to do. Much more can be said that this is one of the morin pardon parts of the Supreme Court decision. Now finally the last couple of minutes i have a like to briefly talk about the role of the bullet conspiracy. Part of it was the son of the arguments used it or not first developed by some of us, especially rain the barnett who was the godfather of the constitutional case against the mandate, but an almost equally Important Role was in breaking down the perception that the other side of the debate was trying to create virtually all experts agree that the mandate was clearly constitutional. She thought that it was not either you w we discussed many other factors that were relevant, but i think this is an interesting example of the buyers spearheading a significant interests over a case involving the Supreme Court n samoyed things will happen in the future. We will be interesting to see how this develops over time. On that note i conclude and a very much look forward to your questions. Thank you very much. [applause] thankyou to the Heritage Foundation in particular to talk about the buck. I wanted to pick up where he left tough talking about the book. As blog posts. While were redoing when rewriting those. There are ways in which the format is changing the nature or at least some aspect of the Supreme Court advocacy and blending some categories. Of wanted to think about the blog post to the you had and hal bloggers in particular may be changing the constitutional debate with really the material in this book being just one example, the first example, public example of how this might happen. What led me to think about the book this way is i happen to have the page proofs for the book on my desk at the same time and an article. An e emeritus professor who is a giant in my academic field, criminal procedure. In the 1960s when he was a young academic he wrote a series of articles rethinking some of the basic understandings of the nature of constitutional criminal procedure which had been a very narrow up to that point. He came along and said at think we are reading these cases long wrong. We should start to think about the new role. He laid down a series of articles, new ways of thinking about constitutional possibilities. The miranda rights in part reflecting in idea had that the fifth amendment should not be limited to the courthouse but the station house during interrogation which was the argument that was laid out. Playing a role in changing the terms of the debate. The academic voice was saying, here is a new possibility. Two or three years later this spring car would come al with a decision. In some ways actually been the idea that he laid out which was an example of an academic engaging in what would be considered advocacy support, opening up the course of new possibility and a political label, a liberal academic pushing in a direction. And there are ways in which low we saw, the mirror image of that academic opening up the new conservative, pushing the law, offering ways of pushing the law and the more conservative direction. There is a prior example of some of the ways it was this dynamic occurred before. What is interesting is the ways that they are different even though there are some similarities. Looking back, they would write an article and it would come out a year later. Maybe five years. The internet changes all of that. It is worth reflecting, steading 20 years ago, the fact you could even get the opinions rarely. At the time it was mostly waiting for slip opinions from the library. Take a couple of days or weeks or months if he wanted to know what they had held in today, its frustrating, the judge releases in the opinion. Sometimes you have to wait until 1015 notes and 30. Refresh. And then there is a sense, a lot of free time. Al want to write on this opinion and a half to give my opinion about. In terms of maine minutes or hours. The debate has become instantaneous. The counterpoint is instantaneous. Looking through this book, many of them are on the same day or over two or three days. He effectively it is occurring in real time and in a very public way. It a lot of bloggers that want to follow the case, read a counterargument. Is there really available to go through these 500 comments. You can wade through the comments. As many debates as you can have in realtime. This be the element is new. One fascinating element is the perception of the arguments, morphing in real time, the Public Attitude was changing in real time. I suspect that is an example of how it will be. The second point i wanted to make is that laws allowing an interesting mix that only of the role of a scholar and advocate the scholar advocate and litigate. There was a 2009 note call experts say blocking. An interesting question about the ethical limits of blocking. And the author was concerned. If you have a blog and an Infinite Resources of electrons to offer by the time the briefs are filed, they can be an afterthought. It is the blotting that can set the terms of the debate. If one side is logging than one side gets the infinite briefs. They can keep writing about it. The and the case or in marriage. And those concerns are overblown is all to million is the publics sight in the same way as someone could write an oped. The kind of an extended version of that. The same time you can have a very highprofile case where blog is really change the nature of the debates in that if there are blocks that a lot of people are reading you can aptos, a Supreme Court law clerk, i read blocks. There were the kind of people that were interested in pending cases. A blog post about a case youre working on youll probably be interested in reading it. The you dont have to obviously, but it is out there. We are seeing an interesting blend. As i said, that very brief becomes yet another round of briefing in what can happen. In the Affordable Care act case, that was an example. But if you follow the blog pose there was a sense that they were repackaging and suddenly altering arguments that had been debated in the publics ear for a long time. I suspect that is going to be something that we have have been more and more in the future and wonder what the Supreme Court litigation will look like. The official blog and then the brief. That single brief. And Justice Scalia will only read the brief. But you can imagine the others will say if i want to know the senate version, really interested in a specific issue, there are a series on these specific issues, you can go to that if you want to know more. The official blog post. Doj blog. But i wonder if they will play this broader role which would be a good thing. If you dont want tacked to may will be there, but it is another voice out there in more information which will hopefully better enforce opinions but i do think it is a change and were seeing more and more of a blend, the Affordable Care act is the example, the blending of roles leading to the briefs being one of many parts of the public conversation. Thank you for hearing. [applause] thank you so much. I cannot resist noting the you are now sitting in an historic location, sitting in the location where the first in public arguments against the constitutionality of the obamacare war era in this very room in the Heritage Foundation in december of 2009. I was on a program in which we presented the paper that we wrote in two weeks arguing for why the Affordable Care act was unconstitutional which had not even come out of committee and it was a paper i wrote with todd of the Heritage Foundation and we wrote this paper that we presented in this room. The remedial i remember meeting warren hatch because he was the keynote speaker. He gave a wonderful speech about why it was unconstitutional and then i had a debate about it and argue that it was unconstitutional and he did they dig up that it was unconstitutional, none other than eugene lawless. As always thought one reason i had not heard from in ac was already on record and wanted to stay away from the record. This all happened. The charm deserve a tremendous amount of credit. The other thing it is barely less wellknown was immediately after we went upstairs to a lunchroom in which we briefed congressional staffers which was crucial because up until this point although the senate has a procedure in which you can make a Constitutional Order it was not clear that they would make such an objection because it was not clear that they knew why the bill would be unconstitutional. We laid out the argument that subsequently shortly thereafter the Senate Republicans it did make a point of order which brought to the public for the first time the arguments that were against the constitutionality. It all started here, and here we are again. Before i say more i want to point out something that has not been said that until now. This is a terrific book. Just a really good book. I was getting ready this morning at went back and said that would read a little bit is the beginning. We were working on the pages in the manuscripts. And i could not put it down. It was not only my own stuff i was interested, although i liked that to. It was a fascinating read. Now want to urge people with the gavel just watch the program, the book is an interesting debate that is inherently interesting and dramatic, coming out of these blog posts, but you will learn a lot about constitutional law. It is like a tutorial. You read the counter argument. When you walk away from this book you will understand constitutional law better in part because loren served as the protagonist. Are we president house of skeptic and he was absolutely a persistent and just made bus refine our arguments. The book would not read as the dramatic evolution that it does. You should read the book because you like it. Before i go on, some people who may be watching this at home may be thinking why is there a book about the challenge to obamacare when it failed. What is the point . We all know that the Supreme Court upheld the Affordable Care act. So what is the point . Well, people appear no is that we succeeded one was to save the country from obamacare. The second was to save the constitution for the country. By the constitution hymenium rated powers this said the constitution only as limited and enumerated powers. The arguments that were being argued by proponents, both the government and its academic enablers were using arguments that virtually eliminated the enumerated powers scheme. We lost this case. We would have not only inflicted this egregious and complete this named acting but in addition to that at the same time we would have eliminated the enumerated powers scheme that the Supreme Court has never enumerated which is will we avoided. We did not succeed in bringing down the act, although we weekend didnt waste, we did succeed in saving the constitution by getting five votes for various legal position is that most academics thou were obviously mistaken. In order to summarize that briefly i will read for bullet points that come out of my concluding remarks. It says we fought this case said that the federal government the power to deny citizens to engage in economic activity. On this we one. We fought this case that congress may adopt any means not expressly prohibited. On this we one. We fought this case to prevent an end run by using tax power. On this we won a partial but significant victory. Finally we fought to establish conditions on federal spending. As chief Justice Rehnquist stated in south dakota versus dole. On this we also won. These are important points and to the extent it matters we have established a very good constitutional law and the course of fighting this fight. So in that time i have remaining i want to make two different points. One is about the traditional philosophy in the other is the role politics played in the case i will say it briefly, in part the reason why we ultimately fail to defeat obamacare in court is the extent we did fail to what part of the wages of judicial restraint that judicial conservatives of various political ideological strengths have been advocating for many years. Started with the political progresses in validating loss in the name of judicial restraint in this culture was taken up during the Warren Court Era and also arguing for judicial restraint. Will we now have is a judiciary that has been chosen by republican president s who have had a year or claimed to adhere to a philosophy of judicial restraint in which they will defer to what they considered to be the more authentic branch of government at the federal state level which is been a big mistake, a big mistake, but one of the reasons why it was possible by adopting a construction which was not what the law actually said was because he had behind him the impulse of judicial restraint that had put him on the court in the first place and put other justices on the court and is a miracle that four justices had a year to various strains actually realized that at this point the was time for judicial engagement to much time to the court to say no to congress which was a part of the constitutionally delegated and party. The court has to say that the measure is within congresss power. So it is time that we start selecting judges who are prepared to do their job in Holding Congress to its enumerated powers. The last thing i will talk about is the role that politics played concern they did play a role in this case why when we use that term constitutional it is ambiguous. There are three Different Things that we can mean, first of all, what it is the constitution says and what the constitution means, that is the old fashion way of doing it. That is one way of doing it. There is no question that at all leave individual insurance mandate, the original meaning, but the entire act, the regulation of the Insurance Companies themselves are unconstitutional because insurance is not questioned. Commerce is that trade and the Stage Movement in its transportation of goods and people. As the first sense. What does the constitution say. Constitutionality according to what the Supreme Court has said. That is so we were debating on whether the Supreme Court said that this was unconstitutional, constitutional, or somehow one clear which would require lower courts to now say whether this was constitutional or not what the Supreme Court made to. We need to keep these fences separated in part because i do think its a case of politics does enter into the third of these three senses as to whether there are five votes or not five votes. Just to invalidate a wrong. As i noted early on in this book in a blogpost those who were confidently predicting the Supreme Court would never invalidate this law i think we are not taking into account the politics of the situation. They were assuming that the law once it was passed or after was passed would be popular but what if it was very unpopular . The courts are very loath to strike down a popular lot that they are not nearly as hesitant to invalidate a law thats unpopular. What if not only the love of some popular and perhaps i say one or both congress flips. Parties as a result of this and supposing the serious repeal ever was made in the house that got filibustered in the senate. It turns out republican didnt take the senate so there was no need to filibuster. How would that affect the willingness of five justices to invalidate this law . I think it did affect the willingness of it. The Supreme Court of United States is a very mainstream institution. It always has been and it always will be in part because a lot of justices are selected by the president of the United States and confirmed by the senate of the United States so there may be some justices who were on the right side and some justices somewhat on the left side of that mainstream but you dont get to be Supreme Court justice or even court of appeals or District Court judge unless you are relatively main strength and you think mainstream so it matters where the mainstream is. And this book and the blogpost in the blogging that took place in the this book as well as what happened will be on this book when the Heritage Foundation came out with its paper and then there was a cspan debate and talk radio picked up on this immediately as it relates result of the cspan debate. After the debate was on cspan they were asking my opinion. By the time the lawsuits were filed in march there was a ready important Public Awareness of the constitutional questions that were raised by this case. I had never seen anything like it in my lifetime. I dont know that we will ever see anything like it again where the public is following a District Court procedure way before the Supreme Court gets involved. And this politics is still working. In fact this is the concluding remark im going to make. We would not have gotten five votes for the propositions i just read to you if it hadnt been for the fact that was a relatively mainstream conclusion for the court to reach when it reached it and Going Forward there are other constitutional challenges that are still out there. There are challenges based on the interpretation of the statute whether subsidies, federal subsidies for example can flow to people who are participating in a federal exchange as opposed to state exchanges. Theres a very important constitutional challenge about how this bill which was a bill to raise what was originated in the Senate Rather than the house as the constitution requires it to be the socalled origination clause currently pending in the d. C. Circuit court of appeals. Whether these lawsuits have any legs or not, whether they will get any traction. In the heard sense of constitutionality that is can you get 25 votes elected it will depend important part on whether the Affordable Care act is popular or unpopular and whether the court believes its disrupting or interfering with the public good when it would invalidated or rather it would rather be doing the public a big favor if it were to invalidate this law. Send this issue back to congress where it belongs and lets let them do it right this time. We need Health Care Reform this country. It needs to be good reform. This is not good reform. I agree with what trevor said. This is a good way to make singlepayer they get a lot of money out of it but that is really what has happened here and we are seeing the consequences now. By the way its not just the face plant that the law has done out of the tamil as its run onto the field. Just wait until it starts working the way it is supposed to work. Then you will really see the problems with the Affordable Care act that we put in our brief to the screen court. With that i thank you all for coming in i look forward to your comments and questions. [applause] we will now turn to questions for 10 or 15 minutes. I have three requirements. One is funnier but nice please announce to your near filiation in the second is keep it short and sweet and the third is and it would they question mark. With that, does anyone have any questions . Yes, down here. See hi. I am andrew with the legal center at the Heritage Foundation. You have identified three or number of good things that came out of this case. The law was upheld on the one hand and you got the public engagement. You have got logs and things that are now in guage but you have a lot of good president so my question is, on the president ial value of the case have you seen any district or Circuit Court opinions where it has been cited favorably for any of the good law that came out of the case . Yes. One of the debates that occurred in the aftermath of the case is whether the material in the courts opinions with respect to the Commerce Clause is actually president ially binding because some claim its not necessarily upheld a state tax. The condor is the chief justice can condor opinion he would not have gotten a tax issue had he not previously ruled that this is invalid as to the Commerce Clause and the proper clause because that is what then let him to reinterpret the laws to make a constitutional and to make a long story short there have now been several District Court and court of appeals decisions which do in fact treat that part as minding precedence. There is one District Court opinion to the contrary but on the whole the lower courts are taking these decisions seriously so i think over time they will be seen as a binding precedent and obviously as we discuss in the book there are some points which are not fully clear. For instance the necessary and proper clause is not entirely clear how do we draw the line between a great independent power versus a merely incidental one and that is something the court will likely have to consider in future decisions. Its very important in this case which is overwhelmingly accepted that its not even discussed and that is the way that the law was upheld a chief Justice Roberts is the penalty in to enforce what used to be an insurance requirement was upheld precisely because it was so low and reasonable that it reserved the choicer option of people paying the penalty or lying insurance. It was an coarser that is the reason was upheld. Have this case been upheld either under the Commerce Clause or the tax power theory that centers on this issue of the Supreme Court have advocated congress won a penalty turned out to be too low to actually get people to make a bad deal to enter into the bad deal that obamacare is making them enter into by buying insurance that is vastly overpriced, when that penalty proves to be too low hat this law been upheld as the commerce called law commerce would have been able to raise the penalty as high as they wanted to. They couldve made it a criminal offense not to have insurance. They cant do that now. There is a Supreme Court precedent which says they can do that now. Because they said this is only being upheld as a tax because its low. Its a fine only and its low only and of course they could raise a little bit. They certainly cant treat this the way the drug laws are treated under the Commerce Clause. They consented to the penitentiary for doing something that they dont want you to do. I dont think theres anybody now who would deny that it congress try to do that there would be a serious constitutional challenge and there were probably more than five votes to strike down such a law. Interesting thing is too the question of when they start raising the tax which they will have to in order to combat the increasing price of insurance on one side because not enough Healthy People are buying insurance. There is a line where that becomes coercive and up comes the new baseline of the south dakota v. Dole. In the south dakota v. Dole case which is about stakeholders they said 5 of highway funds was not enough to koreshan and the medicaid expansion. We have the same question now with how much you charge a person before youre actually unconstitutionally coerced. Yes, down here. Eyeing jason miller. I am a law student and i had a question, in your blog debates in the previous discussions leading up to the case to the religious freedom issues, up . For example contraception . They did but. [inaudible] i focus the book on most of the Commerce Clause and the taxing power of debates but those are important issues. As we know the Court Hearing in march, i make a comment on that in the introduction because we always have this issue of if we resist this centralization of health care we are the philistines that are standing against the tide of history as everyone moves into the star trek world and this idea that this is what were doing worse the civilized way to do Health Health care is to bring it to washington and have a religious group create a group to fight it out like tribesmen. Everyone needs an exemption. Who needs an exemption from these things that are unconscionable. People who like crystals, now you have to have a crystal organization. You still need one on k street to get a that you find unconscionable pelot. They actually have weighed in on that issue. 50 pages too. You think there will be any spillover from the worries about nasa and government spying and so on to this case . At is to say are people getting more worried about extensive powers of government and they dont want a spillover to where they dont want the government to be able to control health care . One thing that hasnt happened yet and i dont know when its going to and i hope it does soon and that is the digital, medical digital records not of justice love their previous losses start with obamacare means that you are not going to have to, the nsa is not going to have to monitor our cell phones and emails. Its all going to be digitized and within reach on encrypted or not encrypted enough to prevent them from accessing it great every illness you havent every doctor you have seen and every shrink you may have talked to will be something the federal government has access to because of this mandated digitization of our medical roots. We havent gotten there yet very the public is not focused on this and even the intelligentsia has not let us on this yet but i think the nsa surveillance issue once this other thing could very well spill over into this aspect of medical care. One other thought. One thing that i think made the obamacare case unusual and remarkable and give it legs was the fact that it outlined so neatly a long political dimensions. Randy was suggesting this when he was talking about how the broader role of politics played into this and i think i would put it even more starkly. The idea that obamacare is unconstitutional became the republican position. Everybody who is a republican would speak that way it is someone who looked at precedence and said wait a minute i think it came out the other way, a lot of people said i didnt know you were a liberal. I said no, this is what the case seems to me to say. People will look at me funny. Thats strange, didnt know you were liberal. [laughter] that is the case where there was very much a sense that this was part of the plan. This didnt happen accidentally. It was a plan to make it a partisan issue so you would have opening up possibilities for folks who may not have otherwise looked at that way and issues on the nsa theres there is still a division in both local parties which keeps that narrative happening at least so far. I would also make 1. 2 meg. One parallel is that my former colleague who writes about police abuse issues in cops breaking into your house has my favorite quote which is libertarian you might be not the a libertarian until the cops are breaking down your house. You can ignore government easier on a new little packs a Regulatory Agency that is probably affecting businesses more than you telling businesses what they can sell but not so much individuals if you are not a business. The nsa is directly affecting individuals in a way that people are starting to realize in the mandate is directly affecting individuals. Suddenly libertarians know whats happening more than they did before. Elias shapiro from the Cato Institute. I want to ask a totally different question not necessarily about the obamacare litigation but how did this episode and the role of the sub for conspiracy pretty used to be if you were blogging not only was that a useless waste of time but it would counter genji that you are a serious academic. Obviously who you who are academics on the blog are very successful. Is this an anomaly or is it now becoming part of if you want to be at the highest superstar reaches at least for certain generation and id know if you are under 50 for Something Like that or under 40 whatever it may be that you do have to make an attempt to join one of these group blogs and somehow start affecting the debate both in the public and have judges reading your log and things like this . What kind of affect is this book in the highest example of it has this change the way law professors. I think they are going to change brewing for some time in and that early on a lot of people said maybe its not a good idea to log because people will say you are not going to be serious about your Academic Work if youre spending your time blogging. The issue is when youre logging peco can see that you are doing it worse if you go fishing and lashed the other bloggers happen to be at that particular stream. [laughter] now i think even though theres a debate going on about whether blogging in a sense counted scholarship or not and i think most blogging is not scholarship but even those like myself dont believe the blogging is a substitute for scholarship they would no longer argue that blogging is a waste of time and issues your unseriousness if you are at the academic here they recognize its influencing public debate about a sling its not just a conspiracy. Their prominent leftwing academics who also blog on the balkanization web site on the other side of this debate during the aca litigation. So i think over time and this will happen even more in the future, legal academics and other kinds of academics recognize that blogging even though its not scholarship is akin to other activity that academics can engage in such as writing operas. I would say in many ways logging is better because you are not tightly constrained by the word constraints that newspapers have whereas in the blogosphere its a much more flexible your blog post speeders are really important to make point to make and the reason why art logging was as effective as it is in the reason why this book is such a great luck is because we were all scholars in the field first. That is we drew upon ourselves ourselves scholarship knowledge to make the more pithy short form arguments we were making as did our adversaries on the balkanization and other places. One of this sort of interesting juxtapositions is or in was not so much a scholar in the Commerce Clause areas aside and in others a vested and he was kind of the protagonist raising questions about what about this and what about that moving into the area. On the nsa surveillance orem is a scholar of the force amendment. Hes the real expert in that area. I raise questions about the constitutionality of the dubious constitutionality of the nsa Data Collection programs but i certainly know the difference between being a Fourth Amendment scholar and not being one so i think it would need a big mistake in our business of some our our colleagues were to think that locking is scholarship. Blogging is not scholarship. It could be i suppose and my colleague ilya samin says it does generally speaking we are utilizing the knowledge and expertise we have developed an in real scholarship in the sense and putting into use. Weblogging does allow us to do is you learn how to write better than you might have written the long form articles. I couldnt get enough but placed a newspaper until i started blogging. I kept writing in a sort of inverted way that would not appeal to newspaper audiences at once i started blogging ive got a different voice and i was able to publish opeds. It does enable us to reach a larger audience with arab logs if we develop a voice that allows us to do that. Orem . I agree with everything you said and i would also say that if blogging is somewhat of an unusual thing for academics to do. In some ways its surprising to me for the influence that blogs are happening and the profile that they have and the readership its still a pretty small number of academics that are doing it on a regular basis. As a percentage that has their name on a group blog somewhere once a year that they might Say Something but the number of people that are doing this on a regular basis is still really quite low and given the hierarchy that academia tends to favor i think blogging would establish part of the legal academia when i see virginia professors professors at harvard and stanford and yale naturally start blogging once they get hired and i think we are pretty far away from that. The last question to this very patient gentleman right over here. Well, much of the conversation. Please tell us who you are. [inaudible] a lot of the conversation about the Commerce Clause and medicaid and the course of power on the states, but there was another issue that kind of held up that actually was in the assignment assignment Senate Finance committee with orrin hatch on directx versus indirect tax and of course roberts did address is somewhere in his decision although i dont think its really well but based off an article in tax notes which argued that it was a direct tax and was unconstitutional. Have you guys looked in the tibet issue anymore and he think maybe should have raised that issue more with the court and maybe that would then roberts . A good question. In our briefs we did deal with the issue briefly because it was not an issue that had been given wide attention by other judges so we didnt think it was going to be major issue but we did in fact address it in our lr be brief. Which i worked worked on so we did raise it but heres the thing i think you have to keep in mind that i agree with you thats treatment of this issue by the chief justice was highly cursory and sort of an afterthought and part of the reason was there was no adversarial breathing on the issue. You shouldnt be making law on important legal question like that without the adversary system or generate good arguments on both sides and be able to test those of oral arguments to know that happened. It was a side issue that didnt go, that was never really race so its another reason why i think with the chief justice did was a mistake. It was actually complained about i think i the dissenters on that issue as to the fact that he reaches this issue without briefing and without full attention to it. And it may be bad law to extend this one opinion as law. That it goes to another issue that i notice that i think i said in one of my blog posts which is when you learn as a litigator in Court Whether you are prosecutor in the criminal court for here doing constitutional education you cannot make a judge ruled away a judge does not want to rule by arguing against them in a certain way. If the judge really wants to reach a certain conclusion there will always be reasonably decent arguments they can rely upon in order to reach that conclusion. So its not a matter of well if we would have just made this one argument we couldve stopped chief Justice Roberts from doing what he was bound and determined to do. For whatever reason he was bound and determined to do it. It couldve asked it made things worse. We made that lot of this tiny corner of tax law weather than making that in a much bigger way. Maybe it would have forced him to side with the dissenters on the questions that we want on. In fact he cant think of a lawsuit that way. You can just make a arguments you make and make it as costly as possible intellectintellect ually for a judge to rule against which want them to rule that to rule but you cant stop them from doing it. One comment on the tax thing and generally it wasnt this part of the tax. In a low records the tax argument was uniformly rejecting not just by those judges who struck down obamacare is for the individual mandate by by judges who upheld on other grounds. If you look at the Supreme Court oral argument not just conservative and liberal tax argument and the solicitor general didnt expect to win on this argument because if you look at their brief it is relegated to the last three or four pages without a 50 page reef. That is where youth have arguments that you dont think theyre going to influence the court and you might as well make it into a so i always thought most experts thought that this was by far the weakness of the rationale. Either chief Justice Roberts has sort have been idiosyncratic reaction where he was almost the only person are the only expert in this field who rejected the commerce improper arguments. There are idiosyncratic people or is various suggest he have a sort of political motive in that he thought this was necessary to hold the law somehow to preserve his reputation out of the court and his view that tax argument was perhaps the least damaging way to do it because it was the least expansion of federal power whatever the case may be this game very much as a surprise to us to us and most commentators that the tax argument would when whereas the other arguments by the federal government that were much end up losing. Its really a turkic book is for sale in the lobby so i hope you will avail yourself of the opportunity to to purchase it or you will regret it. Please join me in thanking the panel. [applause] [inaudible conversations] next on book tv and are in Stephen Schlesinger present a collection of letters from their father the late pulitzer prizewinning historian schlesinger junior special assistant to president kennedy and his letters include correspondence with the Kennedy Family Lyndon Johnson Henry Kissinger and william f. Buckley. This is about an hour. [applause] welcome and thank you for that nice welcoming applause. I want to thank you all for joining us for what i know is going to be a very special evening
comparemela.com © 2020. All Rights Reserved.