Transcripts For CSPAN2 Book Discussion On A Conspiracy Against Obamacare 20140126

Liberty a minute. Repo book and join the conversation, go to booktv. Org and click on book club to enter the chat room. Next on booktv from the Heritage Foundation in washington, d. C. , a discussion on the legal arguments against the Affordable Care act. Trevor burrus, editor of the book and a panel, all law professors and bloggers for the volokh conspiracy website, talk about the impact of the arguments on the obama to debate, both in public and in the courts. This is about an hour 15. Thank you much for being here, and i applaud you hardy souls who braved the cold weather today in order to be here. We are here today with several distinct which panelists to talk about a fascinating book. It was a fascinating about a fascinating case of National Federation of independent business is versus sebelius, better known as the obamacare case. And 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 book 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 well start off with trevor burrus. Trevor was the editor of a conspiracy against obamacare. He is a Research Fellow at the Kid Institute center for constitutional studies where his Research Interest include constitutional law, civil and criminal law, legal and political philosophy, and legal history. Trevor dodds undergraduate degree at the university of colorado at boulder and his law degree at the university of denver. In addition to providing a brief overview of the book, trevor will also talk a little bit about how some of the current problems weve all been reading about with respect to the Affordable Care act relate to the case. Next we will hear from professor ilya somin. A professor at George Mason University school of law where his research focuses on constitutional law, property law and the study of popular political participation and implications for constitutional democracy. He got his ba degree from amherst, a masters from harvard, and his juris doctorate from your law school. Following graduation law school he clerked for the fifth circuit judge jerry smith, an addition by the way to a conspiracy against obamacare, i will gladly put in another plug, ilya is the author of another book, democracy and political ignorance. His articles have also appeared in many scholarly journals. Ilya is going to discuss competing constitutional visions that were at play in the case, and also about the role of the volokh conspiracy in terms of influencing the debate that surrounded the case. After ilya we will hear from orin kerr. Orin is that fred c. Stevenson Research Professor of law at George Washington law school. He got a ba from princeton, a masters from stanford and his church doctorate from harvard. After graduation he clerked on the Third Circuit for judge Leonard Garth and announces green card for Justice Anthony kennedy. Orin is a National Recognized scholar in the areas of criminal procedure and also computer crime law. It work for all while at the justice into crime and intellectual property section. He has argued many cases throughout the country including the u. S. Supreme court, and his articles have appeared in top legal journalism journals. Orin who Randy Barnett describe as a one man would court with respect to this debate will discuss what role academics and commentators played in the run up to this case, and he will compare that with the role that academics and commentators have played in other Supreme Court cases. Last bus or in at least we were there from Randy Barnett, randy is a professor of legal theory at george Georgetown University law center where he teaches on a whole variety of subjects. Is a graduate of Northwestern University and harvard law school. He began his crew as a prosecutor in the Cook County State Attorneys Office in chicago. In 2004, he argued the medical marijuana case before the Supreme Court in that case featured rather prominently in terms of the analysis for the obamacare case. He is the author of over 100 articles and law reviews as well as nine books, and randy will discuss the role that politics played in the litigation. With that please join in welcoming our panel and then we will turn it over. [applause] thank you very much, john, and thank you to the Heritage Foundation for putting this on and for helping out the litigation of this crazy case. I want to thank the volokh conspirators, to my left, the more represented, my professor in law school, forgive me the opportunity work on this book which was incredibly fun. Got to relive some of my own past because i had the interesting experience of coming out of law school and working on the biggest Supreme Court case in 50 years, so that was somewhat surreal thanks to working at the cato institute. Im just going to give a few brief comments about the way i have always saw this case. And i lecture about this throughout the country, and sometimes i feel like i have to return people to rudimentary civics class. Maybe a lot of the problems we have with the constitution as it stands today is because people of god six class from seventh and eighth grade, particularly politicians who do the constitution as an impediment to making the world awesome, which is primitive often what they do. First i want to discuss so we have a frame of reference, the way the law works now, or doesnt work as the case may be, but the general theory behind the law is its important to realize this so they can talk about the future dysfunctionality of the law and how this plays into the way the case worked out. So obamacare is i would call it a political subterfuge build on three pillars in order to great the functional equivalent of a singlepayer system while still calling it the market. What do i mean . First its a political subterfuge. How . They didnt say they were taxing. They just made you give your money directly to a private company. Why . Because they told these private companies, the private insurance they had to cover preexisting conditions and a price control rates. So your Insurance Company you are told you to cover all preexisting conditions and you can charge more for that and youll say, hey, what about the money . We need money. The government has a few choices. Thethey could direct we subsidie the Insurance Companies and raise taxes on porting the, or the other, they could participate in a political subterfuge and make you purchase insurance so they wouldnt have to raise taxes. This is a huge part of the law. Its unquestionably part of the subterfuge. If you look at the cbo scoring of the law originally, cbo has a way of scoring or sometimes if you take the troll of an industry too much they will consider that part of the cost of the bill. The way this worked, they asked the cbo while they were drafting the law, they said, how much of a percentage of whats called a medical loss ratio which is how much of the insurance covers can spend on administrative costs, how much of that would make you include the cost of the individual mandate in the bill . They said 89. 5 . Then the law said, 89. 5 . Exactly right there so you will not include the costs incurred by individual people in the bill. What happens next . As one has an idea maybe of the death spiral which is the next thing that you get out of this. You need people to spend more money on insurance than they would otherwise. This is not a bug in the law right now. This is a future. Theres no way he could work otherwise. You have to pay more for insurance than you would otherwise for thing you generally wouldnt cover yourself you can subsidize the really sick people who will be consuming this. The Obama Administrations biggest mistake in this law was not selling as as a redistributionist law. People will start finding out over the next year that this is a redistributionist law and the reason theyre paying more is exactly into law. It is not a bug. It is a feature of the law. That will come back and bite them in the 2014th election in particular. So thats what the individual mandate does. It subsidizes the rest of the costs of the law. There are some direct subsidies and other taxes, but thats the general idea. The next question is what theyre going to talk about more is can congress do this under the commerce power in particular . I wont get into more of the nuances the way the decision worked out. Going back to civics class i always thought this was very simple. I was recently lecturing to a bunch of germans about this, and they were saying, as you get from europeans alike, well, whats wrong with nothing more health care . Whats wrong with this being the case . Why are americans so against washington, d. C. Having this Better Health care system works or Health Care System is about. If youre in european friendship friendship heard this before, he had to say, the way youre thinking about this is wrong. The question you to ask yourself is as a german, how would you feel if brussels took over your Health Care Decisions . Not berlin, but brussels. Brussels doesnt have power over that. Why doesnt brussels have power over that . They can have power over commerce and all of the laws in germany affect the of the law of the eu, so why doesnt brussels have power over health care . Thats the question we have dealt with for hundreds of years in our jurisprudence in our constitution, was the idea that commerce is a type of thing and not a zone of effects. Its difficult to understand exactly type of thing that is, isnt manufacturing, local agricultural laws . Whatever it is it the type of thing. Increasingly the government has said its a zone of effect. Thats the way the Commerce Clause is meant. That will happen in europe. Mark my words, it will happen in your. The drug laws of amsterdam, the manufacturing flaws in germany, all of those are impediment to some sort of crafted scheme coming out of brussels to rationalize the entire europeann economy. When they come to us into what do we do about this, brussels is saying these local laws are an impediment to commerce, we say yes, they are, as you can make that argument the this was a difficult problem. If someone comes along and says we have power over individual people who have not purchased health care, because they have an effect on commerce, the only thing we can say is yes, they do. We have to articulate a vision that says individual people not purchasing health care is the type of thing that commerce does not apply to. Whether or not they affect anyone. If your power extends to affecting the economy, its limitless. We did win that battle indian and they will talk more about that and i just want to make a few less comments about where we are Going Forward. It wasnt muc a muchpublicizede day of the decision, but it wasnt a win for the Obama Administration in many, many ways. The second worst thing wouldve been for the the second worst thing was for the Supreme Court to give choices to people to Purchase Health care or not, and states to expand medicaid. That was the second worst thing that couldve happened. As ive explained the law, the way it works, not the way the Supreme Court articulated it, the mandate is like a no parking sign. Its you can park there and pay a fine. That means ahead of the cbo had to reassess the law because they know its no longer have the legal command of what it needed to work, even if it was going to work. So that was the worst thing that couldve happened and thats going to make this law spent out of control faster than before. A challenge wit were going fora store to get a vision that says the reason this law didnt work was not because they didnt have enough power, is because they took too much. That is the fight we are all in. After this law fails, the next question will be, the Supreme Court gave them choice and thats a loophole, and they gave the states choices and thats a little and it wasnt enough power and those are all the polls. In this context the loopholes are your freedom. Freedoms are not loopholes in the system of limited government. Thats the fight we have to win Going Forward with this law does and will collapse. Thank you. [applause] id like to start by thanking the Heritage Foundation for organizing this event and all of you for braving the elements to come here today. And also my fellow panelists and especially trevor for doing all the hard, painful work of editing dozens and dozens of blog posts which is really not an easy task with so many People Like Us involved in the project, getting lots of academics to cooperate together, is like herding cats, only perhaps even worse. So in my talk id like to start by focusing on the clash of constitutional vision that this case represented, and then ill go on to talk at the end about the role of the volokh conspiracy in the public debate over this issue. I think ultimately this case develop into a clash between two competing visions of the constitution and federalism. The judiciary should enforce the boundaries of those powers, and its actually a good thing in the real world to enforce those boundaries because having a federal government with too much power is actually harmful rather than beneficial. And i think it rapidly became clear that the debate over the individual mandate in particular was, in fact, an unavoidable clash between these two competing theories of how to interpret the constitution, was the argument for the mandate under the Commerce Clause is the idea that congress can regulate people who have no Health Insurance and are forced to buy Health Insurance. Why . Because not having Health Insurance in the aggregate affects the national economy, and the problem with this argument is, of course, that the same thing could be said for any decision to do anything or not do anything anywhere else in human life or in american society. For example, it certainly alies to the famous applies to the famous broccoli analogy discussed in the case. If you choose not to purchase broccoli, that certainly has an effect on the market for food and other parts of the economy. The you choose not to exercise regularly, that will likely reduce your economic productivity and also have an effect on the economy, and i can make the same analysis for pretty much anything else that you can think of. And, therefore, this core argument for the mandate essentially had no limits. Moreover, it also made many of congress other powers in article i of the constitution redundant. For instance, if the power to regulate interstate commerce ebb ables congress enables congress to regulate or restrict anything that might have an effect on the economy, then congress doesnt need the power to coin money. It doesnt need the power to raise armies. Raising armies certainly has an effect on the economy, and i can say similar things for virtually Everything Else on the list of enumerated powers. Recognizing this problem, the federal government tried to make a series of health care special arguments. Theyre saying this is a special market thats different than anywhere else. Health care is special, it was said, because unlike with most other products, everybody must purchase it at some point in their lives. Now, to some extent this is true, but notice that the focus has shifted from Health Insurance which is what youre actually required to very much to health care which is just a broader category. By the same kind of bait and switch, i could also justify the broccoli mandate. Not everybody likes broccoli as much as i do. Many people do not purchase it, but everybody is in the Broader Market for food which broccoli is just one part. The market for food, in fact, is even more difficult to avoid than a market for health care, just try avoiding it if you dont believe me about that. [laughter] and i can make a similar analysis for purchase of virtually any other product. Maybe you dont realize the volokh conspiracy, but you do get information through some source, somewhere, all part of broader information, so we can mandate requiring you to realize the conspiracy every day. [laughter] i actually kind of like that idea. Maybe we should have that mandate. [laughter] so you get the point. While the government created various clever and sometimes not so Clever Health care is special arguments, ultimately, they fell apart under close inspection. Id like to next talk about an aspect that got a lot of of attention from experts, i think less from nonexperts, and that is 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 with the necessary and proper clause. The latter clause gives congress the power to enact laws which are necessary and proper for carrying into execution other powers granted to congress. And going back all the way to the famous 1819 case of mccullough v. Maryland, the Supreme Court has defined necessary extremely broadly, anything that is used for convenient, and we knew it was very unlikely the Supreme Court would overrule that definition of necessary even though i and is others such as James Madison and Thomas Jefferson [laughter] have had some problems with it. We werent going to win on that. However, we felt, and theres a lot of evidence to support this, that the hes and proper clause requires not only that lobby be necessary, but also it be proper. The Supreme Court has said previous cases as well, the question is what does proper mean in a brief i developed on behalf of the washington legal foundation. We argued that at the very least proper means you cant justify a law by logic, it would give Congress Virtually undies guised power. None could be limited that would give discretion to congress. And as it turns out, the federal governments theory of the necessary and proper clause would, in fact, give them that unlimited discretion and thats why, actually, five justices ended up rejecting their necessary and proper argument and actually gave the most thorough treatment of the proper aspect of the necessary and proper clause that the Supreme Court has actually ever given in its 200year history. They concluded that proper may enable you to create sort of ancillary power to one of the enumerated powers but not to create a, quote, great and independent power. In other words, necessary and proper clause can be used to pin a tail on a dog, but not to pin a dog on a tail which is, essentially, what the federal government was trying to do. [laughter] and much more could be said about this, but i think theres actually one of the more important parts of the Supreme Court decision, one that deserves more anticipation. I discuss a lot in the book, also have a separate article which ive written about this. Now, finally, in the last couple minutes i have id like to briefly talk about the role of the volokh conspiracy in this debate. Part of it was that some of the arguments used by the people challenging the mandate were, in fact, first developed by some of us at the so lock conspiracy especially by randy bar net who was, according to the New York Times, the godfather of the constitutional case against the individual mandatement but i think an almost equally Important Role was in breaking down the pair sense that the other side of the this perception that the other side of this debate was trying to create, virtually all experts agreed that the mandate was clearly constitutional. If you thought it wasnt constitutional, either up an ignore ramus or you were a partisan hack. So you were a hack for the gop or for some kind of Interest Group perhaps. And i think the volokh conspiracy helped break this down because early on we put out a lot of arguments against the constitutional mandate, and seem like Randy Barnett and others being prominent constitutional law scholars, they could not be dismissed as hacks and, therefore, over time many people, including many people who didnt agree with us, had to recognize there was a real debate here as opposed to just a slam dunk for the federal government. Moreover, the blog format enabled us to influence this part of the debate in a way that we might not have been able to through traditional means for a couple reasons. One is the so lock conspiracy, thanks in large part to the work of Eugene Volokh who was not much involved in this case buzz found the blog, it had a large preexisting audience among legal scholars, journalists and ores who were influential in this debate. Secondly, because we could post almost inch instantly the anytime we wanted, we could respond in realtime to claims made by either side in this debate, and that gave us tremendous advantage over doing things with conventional media or through writing law review articles which are great, i write lots of them myself, but they take months to come out, and very few journalists are likely to read them. I certainly would not argue that the volokh conspiracy was the only factor or even the most important. In the book we discuss many other factors that were relevant both political and legal, but i do think this is the interesting example of the blogosphere having an influence over a Supreme Court case, and i suspect similar things are going to happen in the future. Itll be interesting to see how this technology develops over time and how it continues to influence legal debates. So on that note, i conclude, but i very much look forward to your questions. Thank you so much. [applause] all right. Thank you to the Heritage Foundation, and in lahr to john malcolm for the ini havation to be here invitation to be here to talk about the book. I wanted to pick up where ilya had left off, talking about the book and the posts that make up the book. As law posts ask sort of ask what were we doing when we were writing these blog posts . Because i think there are ways in which the blog format are changeing the nature or at least somes aspects of Supreme Court advocacy. And blending some old categories. So i wanted to think about the progress posts here as blog posts that made up the book and think about how blogs in particular may be changing the constitutional debates. With really the material in this booking with just one example, maybe the first example, first public example of how this might happen. And what red me to think about the or led me to think about the book this way is it happened to have the page proofs on my desk at the same time i had an emeritus professor at the university of michigan whos a real giant in my academic field, criminal procedure. In the 1960s when he was of of a young academic, he wrote a series of law review articles really rethinking some of the basic understandings of the nature of constitutional criminal procedure which had been very narrow up to that point. And he came along and said, you know, i think i were reading these cases wrong. I think were reading the history wrong. I think we should start to think about a new role for the Supreme Court, and he lay down this a series of articles new ways of thinking about constitutional possibilities. For example, the miranda rights. The miranda decision in the 1960s, in part, reflecting an idea that yale kamisar had that the fifth amendment should not be limited to the courthouse, it should also apply in the stationhouse during interrogation, and that was the argument that he had laid out. And there was a sense you have going back looking at the articles from the 1960s and then the Supreme Court decisions that followed that kamisar was playing a role in changing the terms of the debate. The academic voice was saying heres a new possibility, and two or three years later, the Supreme Court would come out with a decision often citing kamisar, in some ways echoing the idea hed laid out. And be that was an example of an academic engaging in something you could considered a slow cat si support, a way of pushing the court, opening up new possibilities. And in that case to put political labels on it, it was a liberal academic pushing a liberal Supreme Court in a liberal direction. And i think there are ways in which we saw with the blog post with the volokh conspiracy, the mirror image of that. Conservative academics, again, putting labels on things just for the sake of expedience, offering ways of pushing the law in a more conservative direction. So i think theres sort of a theres a prior example of some of the ways in which this dynamic occurred before. And whats interesting to me is the ways in which the dynamic are different. Even though there are some similarities there. One aspect and one that ilya had mentioned is the time element. So looking back at the 196 of 0s, you know, kamisar would write an article, and then it would come out a year later, and then thered be a case three or four years later, maybe a fiveyear window. And the internet just changes all of that, right . So one change which its worth reflecting on which to us just seems obvious today but was stunning 20 years ago is the fact that you can even get opinions quickly. You know, i was this law school in the mid 1990s and at the time it was still mostly waiting for slip opinions from the library. Take a couple days or weeks or months for them to come out with the opinions if you wanted to know what court had hell. And, of course, today its instantaneous. In fact, its frustrating. A judge releases an opinion at 10 00, and sometimes you have to wait until about 10 15 or 10 30. [laughter] youre sitting here saying refresh, refresh, refresh. Why is this opinion not this front of me . [laughter] and then if youre a tenured academic and you have a lot of free time, you think, well, i want to write on this opinion, you think in terms of minutes or hours, not in terms of days, weeks or months. So this debate, as ilya had suggested, has become instantaneous. And that counterpoint is instantaneous too, right . So looking through the blog posts in this book, many of them are on the same day or other a period of two or tree days three days. So effectively, the debate is occurring in realtime and in a very public way. This is a site that anyone can read, and in a site like the volokh conspiracy, you can have a lot of law nerds that want to follow the debate over new cases, can go and read about it, read the counterargument. If youre really, really bold, go through the 500 comments [laughter] really, really bold. And you can wade through the comments, you can add comments. Comments on comments, as many debates you can have all in realtime, and the speed element is new. So i think one factdating aspect of case is how the perception of the argument asks the arguments themselves are kind of morphing in realtime. They were, Public Attitudes about the arguments were changing this realtime. It was just happening really, really quickly, and i suspect that thats sort of this is an example of how its going to be, sort of the new world brand. And whats, the second point i wanted to make about this is that blogs allow an interesting mix not only of the role of scholar and advocate, but scholar, advocate and litigant. So there was a 2009 law review note in the stanford law review called ex parte blogging which raised some interesting questions about the ethical limits under the legal ethics rules of blogging. And the author, rachel lee, had the following concerns if you have a blog that folks in the Legal Community are realizing and an infinite source of electrons to offer to any particular case, by the time the briefs are filed, the briefs can kind of be an afterthought. Its the blogging that may set the terms of the debate. And if only one side is blogging, one side gets to file infinite briefs, right . They can just keep writing about it, and are there limits on one sides ability to blog about a case given that blog posts can be kind of amicus briefs in disguise . And i tend to think those concerns are overblown because, ultimately, its a public site. People discussing a case. And in the same way that somebody could write an oped or have a press conference about a case, blog posts are kind of an extended version of that. At the same time, i think you can have this very high profile cases blogs really changing the nature of debates on pending cases, in that if the there are blogs that a lot of people in the Legal Community are reading, you can have posts that kind of change the understanding of issues and sort of debate issues in ways that, you know, i remember when i was a Supreme Court law clerk, i clerked this 2003 to 2004, i read blogs. And my sense was pretty much the other law clerks did, too, because we were really interested in pending cases. If theres a blog post about a case youre working on that day, youre probably going to want to be interested in reading it to see if theres something that might be relevant to what you do. You dont have to, obviously, but its out there, and you might find it. So were seeing an interesting blend where, as i said, the merits briefs become yet another round of briefing and what can happen in sport of the blogosphere is a public debate, and i think in the Affordable Care act case, that was thing story. They were kind of repackaging and slightly altering arguments that had been debated in the public sphere for a long time. And i suspect that thats just, again, going to be something that we have happen more and more in the future, and kind of wonder what Supreme Court litigation is going to look like in 20 or 30 years. You can have kind of the official blog to of the case, right . And then the brief, isnt that quaint, the legal briefs that are filed in the case [laughter] and, you know, Justice Scalia will only read the briefs on the court. [laughter] hell scoff at these blogs that are out there. You can imagine others will say, well, you know, if i want to know the extended version of the argument, i dont want to have the page limit version, or im really interested in a specific issue. Look, theres actually a series of blog posts on this specific issue. You can go to that if you want to know more. I dont know if if well have the official blog post for a particular case. Itll be like the doj broking where they get to offer their version of this. But i wonder if blogs will actually play this broader role. To hi mind, ultimately that would probably be be a good thing because be you dont want to access it, you dont have to, of course. The briefs will always still be there. But its another voice out there, and its more information which hopefully will lead to better informed opinions by the courts. But i do think its a change here and that were seeing her and more of a blend of these roles in the volokh spoors. The Affordable Care act case, i think, was probably the example now of this blending of roles. Leading to the briefs being just one of many parts of the public conversation. So thanks for hearing and look forward to debate. [applause] well, thanks so much. I cant resist noting that you are now sitting in a historic location. You are sitting in the location where the first public argument against the constitutionality of obamacare were aired. Many this very room in this very room in her Taj Foundation in Heritage Foundation in december of 2009. I was on a program in which we presented the paper that we wrote for heritage in two weeks arguing for why the Affordable Care act was up constitutional which had not even come out of committee at this point or had just came out of committee, and it was a paper i wrote with todd of the Heritage Foundation and very importantly Nathaniel Stewart who helped to some heavy lifting on the drafting. Ask we wrote this paper that we presented in this room. I remember meeting orrin hatch in the green room right outside the door here because he was the keynote seeker. So, first, he spoke, gave a wonderful speech about why the act was unconstitutional, mirrored most of our arguments. And then i had a debate about it and i, obviously, argued it was unconstitutional, and who did the her package the Taj Foundation Heritage Foundation dig up to argue that it was constitutional . It was none other than eugene so lock. I always thought one of reasons why we never heard from eugene during the course of the debate one way or the other was because he was already on the record, and he just wanted to stay away from the subject as the argument developed. Anyway, this all happened in this very room, and Heritage Foundation deserves a tremendous amount of credit for what happened in terms of the challenge. The other thing thats probably less well known than the fact we had this lick event here was immediately after we went upstays to a lunchroom upstairs to a lunchroom where we briefed staffers. Although the senate has a procedure where you can object to the constitutionality of a bill, it was not clear that the republicans in the senate were going to make such an objection because it was not clear they knew why the bill might be unconstitutional. And it was during the briefing, the private briefing we had for the staffers upstairs in this building in which we laid out the argument that subsequently, shortly thereafter after, Senate Republicans did make a point of constitutional order. There was a televised debate on cspan which brought to the public for the first time the arguments that were against the constitutional the city of the Affordable Care act in which several senators relied on the paper making that argument. It all started here, and here we are again. I just want to point out something that hasnten within said up til now, and im kind of glad it hasnt, and that is that this is a terrific book. [laughter] its just a really good book. I was getting ready this morning, and i was trying to psych myself up to, you know, to participate, so i went back and i decided i would just read a little bit of the beginning to remind myself what was in here. We were all working on the pages and the manuscripts, and i started reading it, and i couldnt put it down. It wasnt only my own stuff i was interested this [laughter] although i like that stuff too. It was just a fascinating read. And so i want to urge people who think, well, you know, okay, fine, ive watched the program, now why should i read the book . The book is really interesting debate. Its just inherently interesting and is dramatic as you see it evolve and the emotions that are coming out of these various blog posts as we debate each other. But also you will learn a lot about constitutional law. It is like a tutorial on constitutional law. As you read one argument, then you read the counterargument, when you walk away from this book, youre really going to understand constitutional law a whole heck of a lot better in part because orin, whos immediately to my right here, served as the protagonist. He was our resident house skeptic. He was the person who didnt buy any of the arguments we were selling, ands just absolutely persistent in objecting his dissent this a very, very powerful way and just made us refine and present our arguments that, if it hadnt been the for his contribution, the book wouldnt read as the dramatic evolution that it does. At any rate, you should read the book because youll like the book. Its a fun book. Now, before with i go on, some of the people who may be watching the this at home might be thinking, well, why the heck is there a book about the challenge to obamacare when it failed . So thigh, whats the point . We all know the Supreme Court concern we think we know that the Supreme Court upheld the Affordable Care act, so whats the point of a book that revives all the arguments against it that failed . Well, the newsies and many of the people here in the room already know but out there you may not know is that we succeeded, actually, in our legal arguments in the case, paradoxically. There were always two different issues at stake in this lawsuit. One was to save the country from obamacare, and the second was to save the constitution for the country. And by the constitution i mean the enumerated power scheme in the constitution that says that congress only has limited and enumerated powers. Both of these issues were always in play because the arguments that were being offered by proponent os the as ofbe the Affordable Care act were using arguments that would have virtually eliminated the enumerated powers scheme of the constitution. If wed have lost this case in a certain kind of way, we would have not only inflicted this egregious and completely misnamed Affordable Care act on the country, but in addition to that, at the same time we would have eliminated the power scheme that the Supreme Court has nebraska repiewduated in the history of this country, and that would have also happened. It would have been a constitutional disaster. And that is what we avoided. We did not seek, we did not succeed in bringing down the entire be act, although we weakened it in certain ways that may prove to be important in the future, but we did succeed in safing the constitution by getting five votes for various legal positions that most legal academics thought were obviously mistake p. And so in order to summarize that briefly, im just going to read four bullet points that come out of my concluding remarks in the book itself as to what we won in the case. It says, i said we fought this case to deny the federal government the power to compel citizens to engage in economic activity. On this, we won. We fought this case to prevent the court from adopting the argument that congress may adopt any means not expressly prohibited when it is regulating the national committee. On this economy, on, we won. We fought this case to prevent an end run around the necessary and proper clauses by using the tax power instead. On this we won a partial but significant victory. Finally, to establish the conditions on federal spending, as chief Justice William rehnquist stated in diss dictum in south dakota v. Dole, on this we also won. These were very important points of constitutional law, and to the extent constitutional law matters to the decision of the court, then we have established some very good constitutional law in the course of fighting this fight. So in the time i have remaining, i want to make basically two different pointings. I wallet to cover two Different Things. One is about the judicial philosophy, and the other is the role that politics played in the case. First, ill say it very briefly, in part the reason why we ultimately failed to defeat obamacare in court to the extent that we did fail to defeat the law itself is a part of the wages of crying judicial restraint that judicial conservatives of various political ideology, ideological stripes have been advocating for many, many years. It started with the political progressives arguing against the Supreme Court invalidating laws that were beyond Congress Power in the name of judicial restraint, and this cudgel was taken up during the Warren Court Era by political conservatives also arguing for jewish or additional restraint. And what we now have is a judiciary that has in part by chosen and selected by republican president s and confirmed by republican senates who have adhered or claimed to adhere to a philosophy of judicial restraint in which they will defer to what they consider to be the more authentic or majoritarian or accountable branches of the government, either the congress at the federal level or state legislatures at the state level. This has been a big mistake. One of the reasons why it was possible for john roberts to save the law by adopting a saving construction which was not what the law actually said, but another construction in order to uphold the law was because he had behind him sort of the impulse of judicial restraint that had put him on the court in the first place and that had put other justices on the court, and it is almost a miracle that four justices who also got onto the court adhering to various strains of judicial restraint actually realize that at this point it was time or for judicial engagement. It was time for the courts to say no to congress, and this was certainly a part of its constitutionallytell gated authority delegated as a separate and coequal branch of government. The courts have to say that a measure is within Congress Power or without deferring to Congress Judgment that a heart is within Congress Power. So its time, i think, in this country that we start selecting judges who are prepared to do their job in Holding Congress to its enumerated powers. And unless we actually ask them to do that job, or theyre not going to. And the last thing im going to talk about is the role that politics played in this case because, certainly, it did play a role in this case. It plays a role in every major constitutional case. But i want to identify exactly what that role is up til now and what it might be Going Forward. One of the posts that came out in the book that i posted in response to one of orins posts is when i identified three different senses of what it means to Say Something is unconstitutional or constitutional. Because when we use the term constitutional, whether this law is or is not constitutional, its ambiguous. Theres three Different Things we could mean. First of all, we could mean what it is the constitution says, is it consistent with what the constitution says and what the constitution means. Thats the oldfashioned way of doing it. Thats the archaic way of doing it. But thats one way of doing it. And in this sense, theres no question that not only is the individual insurance mandate unconstitutional as violative of the original meaning of the objection of the constitution, but the entire act is. The regulation of the Insurance Companies themselves are unconstitutional, although we didnt challenge that, because insurance is not commerce under the original meaning of commerce. Commerce is the trade and exchange and movement and transportation of goods and people. All right, so thats the first sense. What does the constitution say and what does it mean. The second sense is what has the Supreme Court said in the past, and what did it mean when it said that . This is constitutionality according to precedent. Constitutionality according to what the Supreme Court has said. Thats, that is what we were debating on the blog. Whether the Supreme Courts precedent said that this was unconstitutional, whether it said the law was constitutional or was somehow unclear allowing this to be a case of First Impression which would require lower courts to now i say whether this is constitutional or not consistently with its prior decisions. So thats what the constitution says and what the Supreme Court has said and what the Supreme Court meant when it said it. Now, the third sense of constitutionality is are there five votes to strike down a law or to uphold law. Thats the third sense of constitutionality, are there five votes. Now, when im interviewed by reporters about whether matters are constitutional or not, thats, generally speaking, what they want to know ability, do you predict its going to go down, or to you predict its going to be upheld. And unfortunately, i think, thats what most law professors when theyre quoted in the press confine their opinions to. They ricket its going to be upheld or struck doubling. But thats really a separate sense that the first two senses are, and we need to keep these senses separated in part because i do think its the case that politics does enter into the third of these three senses as to whether there are fife votes or five votes or not five votes to invalidate a law. As i noted early on in this book in a blog post, those who were confidently predicting that the Supreme Court would never invalidate this law, i think, were not taking into account the politics of the situation. They were assuming that the law, once it was passed or after it was passed would be popular. But what if it was of very unpopular . The counters are very loathe to courts are very loathe to strike down a popular law. What if not only the law was unpopular, perhaps i say in there, one or both houses of congress flipped parties as a result of this and supposing that a serious repeal effort was made in the house that got filibustered in the senate well, it turns out the republicans didnt take the senate, they just didnt need to take up the bill at all. How would that affect the willingness of five justices to invalidate in this law . I think it did affect. The Supreme Court of the United States is a very mainstream institution, it always has been, and it always will be with in part because of how justices are selected by the president of the United States and confirmed by the senate of the United States. So there may be with some justices who are kind of on the right side of that mainstream, and theres some justices that are somewhat on the left side of that mainstream, but you dont get to be a Supreme Court justice or even a court of appeals or District Court judge unless you are relatively mainstream and you think main mainstream. So it matters where the mainstream is. And this book and the blog posts that took place, the blogging that took place in this book as well as what happened well beyond this book when the Heritage Foundation came out with its paper and then there was a cspan debate and then talk radio picked up on this immediately as a result of the c span debate, and i started getting phone calls in my Office Asking me my opinion about this. Once that happened by the time the lawsuits were piled this march, there was already an important Public Awareness of the constitutional questions that are raised by this case. Aye never seen anything like it in my lifetime. I dont know that well ever see anything like it again where the publics actually following District Court proceedings. [laughter] way before the appellate, the Supreme Court gets involved. And this politics is still working. This is the concluding remark im going to make. We would not have gotten five votes for the propositions i just read to you the it hadnt been for the fact that 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 revenue originated in the Senate Rather than the house as the constitution requires it to be. This is the socalled origination clause challenge thats currently pending in the district the d. C. Circuit court of appeals. Whether these lawsuits have any legs or not, whether they will get any traction in the third sense of constitutionality, that is, can you get to five votes, will depend an important part on whether obamacare, the Affordable Care act, is popular or unpopular and where the court believes it is actually disrupting or interfering with the public good when it would invalidate it or, 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 do health care right this time. We need Health Care Reform in this country, it needs to be a good reform. This is not a good reform. I agree with what trevor said, this was a way of doing single payer by basically making private Insurance Companies regulated utilities. Thats really whats happened here, and were seeing the consequences now. And by the way, its not just the face plant that the law has done out of the tunnel as its run onto the field. Just wait til it starts working the way its supposed to working then youll really see the problems that we actually put in our brief to the Supreme Court. So with that, i thank you all for coming, and i look forward to your comments and questions. [applause] all right, with, i think well now turn to questions from you for the next, oh, 10, 15 minutes. I have three requirements. One is, when youre recognized, please announce who you are and your affiliation. The second is keep it short and sweet. And the third is, end it with a question mark. So with that, does anybody have any questions . Yes, down here. Hi. Im andrew [inaudible] im here with the legal center at the Heritage Foundation. So youve identified three or a number of good things that came out of this case, you know, the law was upheld on the one hand, but you got the public engagement, youve got blogs and things that are now engaged, and youve got a lot of good rest dent. So my question is precedent. So my question is on the precedential value of the case, have you seen any district or Circuit Court opinions where nfib has been cited favorably for any of the good law that came out of the case . Yes. One of the debates that occurred this the immediate aftermath of this case is whether the material in the courts opinions with respect to the Commerce Clause and necessary and proper or clause is actually precedentially binding because some claimed dictum not [inaudible] when a decision is upheld as a tax, the counterargument is, of course, that the chief justices controlling opinion says, in fact, the part of the precedent that he wouldnt have even gotten to the tax issue had he not previously riled this was ruled this was inviletive to the necessary and proper clause because thats what led him to reinterpret the law so as to make it constitutional. To make a large story short, there have been several Court Opinions which do, in fact, treat those parts of the ruling as binding precedent. There is one to the contrary which says, no, its dictum. But on the whole, the lower courts are taking these parts of the decision seriously. So i think over time they will be seen as binding precedent though, obviously, as we discuss in the book there are some points which are not fully clear there. For instance, the necessary and proper clause its not entirely clear how do we draw the line between a great and independent power versus a merely incidental one . Thats something the court will likely have to consider this future decisions. Randy . Theres a very important implication of this case which is so overwhelmingly accepted that i think its not even discussed, and that is that the way the law was upheld by chief Justice Roberts is the penalty to enforce what used to be an insurance requirement was upheld precisely because it was so low and reasonable that it preserved the choice or option of people to either pay penalty or buy insurance. It wasnt coerce i. And thats the reason it was of upheld. Had this case been upheld under the theory that the dissenters on this issue on the Supreme Court had advocated, congress when that penalty turned out to be too low to get people to into into the bad deal that obamacare is making them enter into by buying insurance thats vastly overpriced when that penalty proves to be too low, had this law been upheld as a Commerce Clause regulation, congress would have been free to raise the penalty as high as hay they wanted to. They could have made it a criminal on the not of to have insurance. They cannot do that now. Theres a Supreme Court precedent which says they cant do that now because they said this is onlying with upheld as a tax because its low. Its a fine only, and its low only, and, of course, maybe they could raise it a little bit. Im not saying they couldnt do that, but they certainly cant treat in the way the drug laws are treated under the Commerce Clause and send you to the penitentiary for doing something they dont want you to do. So that precedent, i dont think theres anybody now who would deny if congress tried to do that, there would be a serious constitutional challenge, and there would be probably more than five votes to strike down such a law. The interesting thing, too, is that 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, theres theoretically some constitutional heretofore not declared constitutional line where that becomes coercive. And it becomes the new baseline of, like, the south dakota v. Dole for individual coercion. Because in the south dakota v. Dole case which is about state coercion, they said 5 of highway funds was not enough to coercion, and then they went to this Medicaid Expansion which was enough for coercion. We have the same question now with how much of you have to charge a person before youre actually unconstitutionally coercing them. Other questions . Yes, down here. [inaudible] im jason miller, im a law student at catholic university, and i had a question in your blog debates and in the priest discussions lead previous discussions leading up to the case, did the religious freedom issues come up . For example, the contraception mandate . I think they did, but theyre not in the book really. [laughter] i focused the book on most of the Commerce Clause, occasional taxing power debates. Those are incredibly important issues. As we know, the court will be hearing that in march. Thats, i make a comment on that in the introduction because we always have this issue of if we resist the centralization of health care, were supposed to be knuckledragging philistines who are standing against the tide of history as everyone moves to spaceships and star truck world and this ideas what were idea thats what were doing, whereas bring it to washington, have every single religious group to fights it out like a bunch of tribesmen beating each other over the head with clubs. And Everyone Needs an exemption, who needs an exemption from these things are unconscionable, whether its jehovahs witnesses or people who like crystals, now you these a crystal lobbying organization to. You still need one on k street to get exceptions from thing exemptions from things you find in the law. That debate is going on now, and ewe gene volokh has weighed in on that issue [laughter] question down here. Gerald chandler. Do you think therell be any spillover from the worries about that is saw and government spying and so nasa and government spying and so on to this case . That is to say, are people getting more worried about extensive powers of government and they dont want, therell be a spillover to where they dont want the government to be able to control the health care . There has 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 records, the medical digital records part of not just this law, but previous laws that didnt start with obamacare means that youre not going to have to finish the nsa is not going to have to monitor all our cell phones and emails to figure out all the illnesses we have. Its all going to be digitized and within reach of them. Unencrypted, or not encrypted enough to prevent them from accessing it. So every illness you got and every shrink you may have talked to is something that the federal government is going to have access to because of this mandated digitization of of all our medical records. We havent gotten there yet. The public has not focused on this, even the intelligentsia has not focused on this yet. But i think that the nsa surveillance issue, once this other thing it could very well sill over into this aspect spill over into this aspect of medical care. One other thought. One thing that i think made the obamacare case unusual and remarkable and really gave it legs was the fact that it aligned so neatly along political dimensions. And randy was suggesting this when he was talking about how the broader role of politics played into this. I think i would put it, you know, even more starkly. It became the idea that obamacare was unconstitutional became the republican position. Everybody who was a republican would speak that way, and as someone who looked at the precedents ask said, wait a minute, i think they came out the other way, i had a lot of people say i didnt know you were a liberal. [laughter] im notment people look at me funny, well, thats strange, i didnt know you were a liberal. [laughter] and that was the case where really there was very much a sense and this was part of a plan, right . This just didnt happen accidentally. It was very much part of a plan to make it a partisan issue so that you would have, you know, sort of open up possibilities for folks that otherwise might not have looked at it that way. And on issues like the nsa, theres still very Much Division in both Political Parties which keeps that narrative from happening, at least so far. One parallel is that my former colleague or former cato employee who writes about police abuse issues, cops breaking into your house, has one of my favorite quotes from a libertarian standpoint which is libertarianism happens to you. You height not be a libertarian might not be a lib ortarian until the cops are breaking into your house. One of the things about this law that were seeing is you can ignore government easier on a new little tax, a new little Regulatory Agency thats probably affecting businesses more than you, telling businesses what they can sell but not so much individuals, but nsas directly affecting individuals in a way that people are starting to realize. And the mandate is directly i affecting individuals. And suddenly, libertarianism is happening to people more than before. Ilya shapiro from the cato institute. I want to ask a completely different question, not necessarily about the obamacare litigation, but how did this episode and the role of volokh conspiracy or atext legal academia in the sense that, i mean, it used to be if you were blogging, not only was that a useless, waste of time, it counted against you. Youre not a serious academic by doing this. And all of you who are academics on the blog are very successful. Is this an anomaly . Is it kind of now becoming part of if you want to be at the, you know, highest superstar reaches, at least for a certain generation, you know, if youre under 50 or Something Like that, under 40, whatever the case may be, that you do have to make an attempt to join one of these group blogs and, you know, somehow, you know, start affecting the debate both in the public and have, you know, judges reading your blog and things like this . What kind of effect does this book, i guess, the highest example of it, does this sort of thing change the way that law professors and the intellectual debate works . So i think theres been a change brewing on this for some time in that early on a lot of people said, especially early in my career, maybe its not a good idea to blog because people will say youre not actually serious about your Academic Work if youre spending your time blogging. On one level students say, well, why isnt it better to spend your time blogging than fishing, people can see youre doing it. When you go out fishing, unless the other law professors happen to be at that particular stream [laughter] now i think you rarely see or hear comments even though there is a debate going on about whether blogging itself can, in a sense, count as scholarship or not. You can argue about whether it can. I think actually most blogging is not psychological similarship scholarship. But even those who dont believe that blogging is somehow a substitute for scholarship, they will no longer argue that its a waste of time and it shows youre unserious because they recognize that its influencing public debate and, obviously, its not just the volokh conspiracy. There are prominent leftwing academics who blog, sort of 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, also other kinds of academics reck these that blogging even if its not scholarship is akin to other activity that academics can legitimate engage this such as writing opeds. I would actually argue that blogging in many ways is better because youre not so tightly constrained by the word counts and forms and other constraints that newspapers have whereas in the blogosphere its a much more flexible and happen much more quickly and much more efficiently. Tweeting wont work. Your blog posts count as psychological hardship. [laughter] threepart blog posts. Randy . Theres a really important point to make on the subject, and that is that the reason why our blogging was as effective as it was and the reason why this book is such a great book is was we were all scholars in the field we were blogging about first. That is, we drew upon our scholarship and knowledge to make the more pithy, short form arguments that we were making on the blog. As did our adversaries on balkanization and other places. One of the sort of interesting juxtapositions is orin was not so much a scholar in the enumerated powers area as i had been, and he was kind of the protagonist, raising questions what about this, what about that moving into the area on the nsa surveillance, orin is a scholar of the Fourth Amendment. Hes the real expert. I am somewhat trenching into his field as i raise questions about the constitutional the city, the dubious constitutionality of the nsa bulk Data Collection programs. But i certainly know the difference between being a Fourth Amendment scholar and not being one. So i do think it will be a big mistake in our business if somehow our colleagues were to think that blogging is scholarship. Bloging is not scholarship, and it could be, i suppose be, the my colleague Larry Sullivan has legal theory blog. That does amount to scholarship, but thats totally unique. Generally speaking, we are just utilizing the information, the knowledge and expertise we have developed this real scholarship in the sense of law review articles and book, and were putting it to use. What blogging does allow us to do, though, is learn how to write better than we might have written in the long form law review articles. I couldnt get an oped placed in the newspaper until i started blogging because i kept writing in this sort of inverted way that would not appeal to newspaper audiences, and once i started blogging, i got a different voice, and then i was able to publish opeds. So it does enable us to reach a larger audience if we develop the voice that allows us to do that. Where orin, you had somethingsome. Yeah. I agree with everything randy just said. I would also say blogging is still a somewhat unusual thing for academics to do. In some ways its surprising to me that for the influence that blogs are having and for the profiles that they have given the readership of the law review articles, its still a pretty small number of academics that are doing it on a regular basis. Theres a decentage that, you know, maybe have their name on a group blog somewhere and once a year 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 i think legal academia tends to naturally favor, i think blogging has become a part of legal academia when i see the junior professors at harvard and yale naturally start blogging once they get hired. Last question from this very patient gentleman over here. If well, much of the conversation has been about please tell us who you are. Im chris tomlin, and im with the senate. But a lot of the conversation about the Commerce Clause, there was also some about kind of medicaid and the courts power on the states, but there was another issue that kind of came up, and actually it wasnt in the Senate Finance committee version. Orrin hatch has raised the question of direct tax versus indirect tax. And, of course, roberts did address this somewhat in his decision, although i dont feel like it really takes it on that, you know, really well. But hatchs was based off of an article that was in tax notes which argued that it was a direct tax and had to be [inaudible] and so is, therefore, unconstitutional. Did you guys look into that issue any more, and do you think maybe you should have raised that issue more with the court . Maybe that would have been with roberts and well, good question. I mean, in our briefs we did raise it, we did deal with the issue briefly because it was not an issue that had been given wide attention by other judges, and so we didnt think it was going to be a major issue. But we did, in fact, address can it in the nlrb brief. Not nlrb nfib, sorry, which i worked on. So we did raise it. But heres the thing i think you have to keep in mind, and i agree with you, the treatment of this issue by the chief justice was highly cursory, sort of an afterthought. And part of the reason was there was no adversarial briefing on the issue. You shouldnt be making law on an important legal question like that without the adversary system working, so you generate good arguments on both sides and then are able to test those in oral argument. None of that happened because it was a side issue that didnt go, that was never really raised. And so its another reason why, i think, what the chief justice did was a mistake. It was, actually, complained about, i hi, by the dissenters i think, by the dissenters on that issue, as to the fact that he reached this issue without full attention to it and, you know, maybe bad law to the extent his one opinion is law. But it goes to another issue that i noticed that i think i said here in one of my blog posts, and that is when you learn as a litigator in Court Whether youre a prosecutor in criminal court or whether youre doing constitutional adjudications, you cannot make a judge rule the way the judge does not want to rule by arguing against them a certain way. That is, if a 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 have just made this one argument, we could have 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 wouldnt have stopped him. It actually could have made things worse. We made bad law on this little tiny corner of tax law rather than making it in a much bigger way. Maybe it would have forced him over to side with the dissenters on the big picture questions that we won on. So, in fact, you cant think of a lawsuit that way. You can just make the arguments you can make and make it as costly as possible intellectually for a judge to rule against what you want them to rule, but you cant stop them from doing it. One comment on the tax thing generally, and that is it wasnt just this part of the tax argument that was somewhat underdeveloped, it was the swire thing because in the lower courts the tax argument was uniformly rejected not just by those judges who struck down obamacare or struck down the individual mandate, but by those judges who upheld it on other grounds. And if you look at the transfer transcript of Supreme Court overrule argument, even the liberal judges expressed tremendous skepticism about the tax argument and is solicitor general arguing the case for the government, i dont think he expected to win on this argument because its relegated to the last three or four pages of an over 50page brief. If youre experienced, thats where you put the sort of throwaway arguments that you dont think are going to influence the court, but you might as well make it anyway was you have some additional space, and you never know what might happen. I always thought and most experts thought this was by far the weakest of three rationales that the federal government offered for the law. So ultimately, what happened is either chief Justice Roberts had sort of an idiosyncratic reaction where he was almost the only person or at least the only expert in his field who rejected the commerce and necessary and proper arguments but bought the tax argument, thats possible. There are idiosyncratic people. Or as various press leaks suggest, he had a sort of political motive in that he thought this was necessary to uphold the law somehow to preserve his reputation and that of the court, and in his view the tax argument was, perhaps, the least damaging way to do it because it was the least expansion of federal power beyond what it had been previously. At this point we cant rule out either the idiosyncratic interpretation, could have been the case, or the sort of more political interpretation. But whatever the case may be, this came very much as a surprise both to us and, i think, to most commentators that the tax argument would win whereas the other arguments offered by federal government which were much stronger ended up losing. Well, this really terrific book is for sale this the lobby, so i hope some of you will avail yours of the opportunity to purchase it. You wont regret it. And please join me in thanking the panelists. [applause] [inaudible conversations] youre. Watching booktv, nonfiction authors and books every weekend on cspan2. Booktv is on facebook and twitter. You can like and follow us for book industry news, booktv schedule updates, behind the scenes looks at author events and to interact with authors during Live Television programming. Here are a few of booktvs posts this past week. On monday we tweeted a Washington Post article about Hillary Clintons new memoir. And tuesday booktv posted a wall street journal argue about amazons new shipping system. 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