Beth hill is fort tie continue row georgia key to a continent and it was written by a director of fort ticonderoga in the 1960s. Its still the preeminent book that provides the history of fort ticonderoga. And then my last book which is unrelated to my district, but i try to and im interested in books of powerful women in United States history, and as i was recently walking through a bookstore, i saw the autobiography of helen keller the story of my life. Obviously, that was published quite a long time ago, but when i was in middle school, i remember reading the miracle worker in my english class so im really looking forward to reading the story of her life. And booktv wants the know what youre reading this summer. Tweet us your answer booktv or you can post it on our facebook page, facebook. Com booktv. Up next on booktv, a discussion with the author of this book the tough luck constitution and the assault on health care reform, is the name of the book, and North WesternUniversity Law professor Andrew Koppelman is the author. Professor koppelman, first of all, what did you think of the court case the the Supreme Court case on the Health Care Law . What was your view of it . Guest well, they did a lot less damage than they could have. The most significant thing the court did was tell states that they could basically revise and edit the federal Medicaid Program and refuse the parts of it that had obamas name on it. And thats had really Terrible Health consequences for a lot of people. Theres just an enormous population, particularly in texas, thats gone uninsured and they did that on the basis of really terrible legal reasoning. If theres one thing that im trying to get across in the book, its to get clear to ordinary people who arent lawyers just how bad the legal reasoning was in this case. Host even though it was a 54 decision, essentially everybody looked at it as in favor of the Health Care Law. Guest well, i say, it could have done a lot more damage than it did. There were four judges who wanted to strike down the entire law, every last bit of it, on the basis of a constitutional challenge that on the basis of a constitutional theory that nobody had ever heard of until the law was almost passed. Host what was that theory . Guest the theory was that government cannot make you buy things unless you engage in some kind of selfinitiated action. That was the core theory of the challenge, that government cant regulate you just because you exist and are in the United States. You have to engage in some selfinitiated action in order to be subject to a requirement to buy Health Insurance. And this ideas really fundamentally at war with the idea of universal health care. The basic idea is very simple. Universal Health Care Means universal health care. If theres going to be universal health care, everyone has to have health care. Its just a matter of logic. A equals a. But the claim was that government is doing something terrible to you if it makes you do something unless you engage in some action that subjects you to regulation. Its a very strange constitutional theory. This was offered as a great bulwark of liberty. If you dont do anything, if you dont engage in some economic action, government cant regulate you. That was the core idea. Theres no protection of liberty. Host you called it novel. Guest yeah. Its novel because it was never heard of before. It was invented really while the bill was working its way through congress. Part of what i do in the book is try to trace the timeline of where this challenge comes from, and it was only devised as a fullydeveloped constitutional argument that actually reckoned with the Supreme Court case law less than a month before the bill was passed. Host who brought it up . Who suggested it . Guest well, there were a number of conservative lawyers who thought of it. I think probably the most credit for coming up with it belongs to professor Randy Barnett of georgetown law school. Randy is an extremely smart guy, and he knows constitutional law very well, and part of the job of a lawyer is to figure out how to interpret all of the past cases so that they favor your side. And you can be quite creative in doing this and then the job of a judge is to critically assess what the lawyer has come up with and not just by buy the lawyers stories, because youve got good stories on both sides. The fundamental problem with this idea of randys and has become now the party line of points of obamacare that government cant regulate you unless you engage in some economic activity, is that this is no protection of liberty at all. The basic claim here is that government cant regulate me if i live in the woods and eat berries. Its not really an option for any american citizen to not participate in the economy. In fact the mandate, the requirement to buy insurance since the form that it took was a penalty that was imposed on your tax refund and people only get a tax refund if they have engaged in economic activity, actually the mandate did satisfy this rule. Its something that nobody noticed at the time. But basically this theory that youve got to engage in some activity in order for congress to regulate you, this is never going to come up again as a protection of liberty. This is the weapon of a bee. It stings and it dies. Were never going to hear of it again. Host whats the role, professor koppelman, of the Commerce Clause in your argument . Guest okay. So one of the chapters of the book tries to offer an introduction to congressional power under the constitution, and when you look at congressional powers under the constitution, the first thing you have to understand is why theres a constitution in the first place. If you want a Weak Congress that is in no position to push us around, youll love the articles of confederation. Because there was very Weak Congress that could really do very little. It couldnt tax people directly, it couldnt directly regulate, and the problem was that there were common problems that all the states had that nobody could solve. The states couldnt because they were too weak, the federal government couldnt because it was too weak, and so the fundamental purpose of the constitution is to make sure we are never again in a situation where there is some problem that cant be solved by anybody; not by the states, not by the federal government. So article i and section eight of the constitution has a list of congressional powers. New powers that congress didnt have under the articles of confederation. And one of those is the power to regulate commerce among the several states which has been interpreted for many decades now to mean General Authority over the economy. So that means that congress has got the power to regulate, for example, Insurance Companies. So it can say to Insurance Companies that sell Health Insurance if there are people with preexisting conditions preexisting medical conditions, you cant discriminate against them. You have to issue policies to them, and you cant charge them extremely high rates. Now, a number of states tried that, but they found that if you do that you require Insurance Companies to insure people with preexisting conditions that youll drive the cost of insurance through the roof because people will wait until they get sick to buy insurance. So the only way to be sure that this will work is to require everybody to buy insurance which is, in fact what mitt romney did in massachusetts. He said you have to write insurance for people with preexisting conditions, but he also required everybody to purchase insurance. Thats the way that it works. The other clause of the constitution thats relevant here at the end of the list of powers in article i section eight, is the necessary and proper clause which says congress can exercise all powers necessary and proper for carrying out foregoing powers, the others on the list of article i, section eight. So im sorry. Host necessary and proper clause. Guest necessary and proper. So the meaning of necessary and proper clause was conclusively resolved by chief Justice John Marshall in 1819. Marshall said that congress has a broad choice of means. It can pick any means that are convenient for carrying out its enumerated powers. So, for example congress this was an example that marshall offered. Congress has the power to operate a post office. And so it can do whatevers convenient for operating a post office, and that means that, for example, congress can make it a crime to rob the mails. Now, its possible to operate the mails without making it a crime to rob the mails, but its convenient and helpful to making the mails run to make it a crime to rob the mails so congress can do it. The Health Care Mandate is just like that. If youre going to require Insurance Companies to write insurance for people with preexisting conditions and no one doubts that you can even the people who challenged the statute dont doubt that congress can do that, then it can make that effective by also saying and everyones got to have insurance. Our point of making sure that people with preexisting conditions are able to buy insurance, were just not going to be able to achieve what were trying to achieve with statute unless everyone has to have insurance. Therefore, everyone has to have insurance. The argument for the mandate was really very simple. Host why do you think professor Koppelman John Roberts ruled the way he did . Guest well, theres been an awful lot of speculation as to what roberts motives were. One that and theres no way to know for sure. There is one possibility that i think hasnt been given enough attention that i give some attention to in the book, and that is that roberts was honestly trying to do his job the best he could. That he honestly accepted the arguments. I think that theyre bad arguments, and i say why theyre bad arguments why congress couldnt do the mandate under the commerce power but roberts has a long history of trying not to strike down statutes as unconstitutional. In lots of cases, hes been willing to construe that any am ambiguity in a statute for a long time, in many cases, hes been trying to construe any ambiguity in a statute to avoid holding the statute unconstitutional. And thats what he did in the Health Care Case. The mandate was capable of being construed as a tax, it was withheld from peoples tax refund, it was collected by the irs, it depended on your income. In a lot of ways, it looked like a tax and he said yeah, its a tax. And i think thats broadly consistent with roberts judicial philosophy. Host where are we as far as the legal challenge on the Affordable Care act . Guest ah, so theres another case that the court is about to decide king v. Burwell. Were going to hear about it by the end of june. And that claims that on the basis of, again a very strange reading of the statute its not a constitutional case that many states are going to lose their subsidies for Health Insurance, again, on the basis of a legal theory that no one ever thought of until after statute was passed. And its a really strange legal theory because it makes large parts of the statute make no sense. It tells states, it tells the federal government that it has to set up these health care exchanges, and then it doesnt let anybody enroll in them. Its really a very silly theory. But the whole story of the Health Care Cases from the beginning of the earlier one and of this one is a story about silly theories being treated with much too much respect. And what i try to do in the book is explain to people who arent lawyers what the constitutional issues are and whats wrong with these constitutional theories, because i think its very important, you know . The shape of constitutional law constitutional law is a complicated subject, but people exercise power over you over your life on the basis of constitutional law. If you want to understand how power is being exercised over you, you have to understand something about constitutional law. And you particularly need to understand this case which very nearly took Health Insurance away from tens of millions of people. Host whered you come up with the title the tough luck constitution . Guest i was trying to, i was trying to come up with a label for the peculiar variety of libertarianism that says that if you get sick and you cant pay for it, thats your tough luck, that it would be unjust for government to tax somebody else to pay for your health care. I think there was a very revealing moment in the oral argument when Donald Verrilli the solicitor general, argued on behalf of the mandate that its fair to require people to buy Health Insurance because if they get sick and they cant afford to pay for it, were obligated to give them health care. And Justice Antonin Scalia said to him well, dont obligate yourself to that. So really extraordinary thing for scalia to say. And i think that it shows sort of the moral culdesac that the conservatives got themselves into. Because this really was very much driven by politics. Obama was for this bill, so the conservatives were against it. Once the bill was passed, the only hope of shutting it down was a constitutional challenge, and the only constitutional theories that were out there were extreme libertarian theories of a kind that were really morally repellant. And so people who really dont believe this stuff, i dont think that scalia really believes that its okay to withhold health care from people because theyre poor, they found themselves saying these tough luck things. I needed a label for that. Host how significant is the case were currently waiting to hear about king v. Burwell as opposed to the case thats already been decided by the Supreme Court . Guest i think that a decision in favor of the challenge in king v. Burwell would do far more damage than the earlier sebelius case. Because in the sebelius case, the obamacare system was really just being set up, a lot of it wasnt many place yet there wasnt in place yet, there wasnt a Large Population of people who were already receiving benefits and were dependent on it. If king v. Burwell were decided in favor of the challenge then enormous stream of federal money to hospitals would suddenly get cut off. There would be huge numbers of people who are now getting subsidies for health care who wouldnt do it anymore and there would be a large number of people who would be getting subsidies for health care who suddenly wouldnt be able to afford Health Insurance anymore. And so it would be, it would be a bureaucratic nightmare for the Health Care Industry to try to cope with this radical shift. In theory there would be millions of people who would owe large sums of money to the federal government, because court would have to say they were never entitled to the money in the first place. The reason why i expect there are two reasons why i expect this challenge to fail. One is that the legal arguments are terrible, just terrible as a matter of statutory interpretation. And the other is that here really much more than in the earlier case the humanitarian catastrophe is going to be there to see. Within a few weeks there are going within a few months there are going to be people standing outside the Supreme Court holding up signs saying john roberts killed my mother. And journalists will investigate, and theyll find that thats true. Host Andrew Koppelman, if people read the tough luck constitution, what are they going to learn, and whats the conclusion theyre going to come to . Guest well, one thing that theyll learn is just the basics of congressional power. One of reasons why i think that it was is so hard to understand it was so hard to understand the Health Care Case is that you need a basic understanding of where Congress Gets its power from under the constitution and what the real limits on that power are and it explains why obama chose this very politically unpopular route of requiring everyone to buy Health Insurance. And then itll tell you where the challenge come from. And then itll tell you where the challenge came from and why the Supreme Court decided as it did, and itll give you a way to critically read what the Supreme Court wrote. So one thing the book will give you is the ability to critically read and understand the work of the Supreme Court in this very important case. Host Andrew Koppelman is professor of law at northwestern university. Booktv is on location here in evanston illinois, talking with professors who are also authors. Booktv now continues. Is there a Nonfiction Author or book youd like to see featured on booktv . Send us an email to booktv its cspan. Org tweet us, booktv, or post on our wall, facebook. Com booktv. Well, 21 years ago i wrote a piece in the city journal that was titled the knife went in, and it referred to a curious phenomenon that id noticed in the prison in which i worked. And that was that virtually all murderers who stabbed someone to death said of the relevant moment the knife went in. And i thought that this was a curious way of describing what had happened [laughter] implying, as it did, that the knife had a volition of its own. [laughter] and that it was a knife that it was the knife that guided the hand rather than the hand that guided the knife. And my wife said, my wife thought who is also a doctor thought that i was exaggerating. And, of course i absolutely never exaggerate. [laughter] but one day she was in her clinic, and she had a patient and it was a lady, and she said she asked about her husband, and she said the knife went in. And she realized that i hadnt been exaggerating. Now, this way of putting it is significant, at least i thought it was significant because it suggested that the perpetrator was by his rather peculiar locution distancing himself from his own act and from his responsibility for it. And he was turning it into some kind of natural event rather like an eruption of vesuvius, for example rather than a motivated, willed action with human intention behind it. But, of course, its not only murderers who use this mental device, and im not going to ask for a show of hands but i doubt that there is anyone in this room who has never resorted to it. And, certainly the mind rarely the human mind rarely displays its flexibility so brilliantly as when it is finding excuses for bad behavior. Or rationalizations for having done what ought not to have been done. And even the dullest person who has never had an original idea in his life instantly becomes wonderfully inventive [laughter] the moment he is justly accused of having done something that he ought not to have done. [laughter] this is an important if not necessarily creditable, fact or aspect of human psychology and nature that is surely available to anybody who will either Pay Attention to or think about the words and acts of others or to what dr. Johnson called the motions of his own mind. And its my contention that honest attention to the words and deeds of others and to our own thoughts and emotions reveals to us infinitely more about human condition than the formal study of psychology has ever done or will ever do. And, in fact its my contention in the book that psychological theory, whether it be psychoanalytical behaviorist darwinist or neurochemical whatever it is certainly any theory that claims to explain all or a very large part of our human existence and experience actually creates a barrier to human selfunderstanding rather than advancement of it. Insofar as it encourages people to think of both themselves and others as objects rather than as subjects. And this inevitably leads to an increase in intellectual and moral dishonesty and evasion because try as we might we cannot experience ourselves as objects rather than as subjects. So theres inevitably a tension that is created. You can watch this and other programs online at booktv. Org. President ial candidates often release books to introduce themselves to voters and to promote their views on issues. Heres a look at some books written by declared candidates for president. Neurosurgeon ben carson calls for greater individual responsibility to preserve americas future in one nation. In against the tide, former Rhode Island Governor Lincoln Chafee recounts his time serving as a republican in the senate. And former secretary of state Hillary Clinton looks back on her time serving in the Obama Administration in hard choices. In a time for truth, texas senator ted cruz recounts his journey from a cuban immigrants son to the u. S. Senate. Carly fiorina former ceo of hewlettpackard, is another declared candidate for president. In rising to the challenge, she shares lessons shes learned from her difficulties and triumphs. Former Arkansas Governor Mike Huckabee gives his take on politics and culture in god, guns, grits and gravy. Former new york governor George Pataki is also running for president. In 1998 he released pataki where he looks back on his path to the governorship. And kentucky senator rand paul calls for Smaller Government and more bipartisanship in his latest book, taking a stand. Another entrant into the 2016 president ial race is former Texas Governor rick perry. In fed up, he explains that government has become too intrusive and must get out of the way. In american dreams, florida senator marco rubio outlines his plan to restore economic opportunity. Independent vermont senator Bernie Sanders is a candidate for the democratic nomination for president. His book, the speech, is a printing of his eighthourlong filibuster against tax cuts. In blue collar conservatives, president ial candidate Rick Santorum argues the Republican Party must focus on the working class in order to retake the white house. Others who may announce their candidacies for president include Vice President biden. In promises to keep, he looks back on his career in politics and explains his guiding principles. In immigration wars, former governor jeb bush argues for i new immigration policy argues for new immigration policies. More potential