Do this in particular. I wont go into any more than that in the way the decision worked out. I always thought that this is very simple and i was recently lecturing to a bunch of germans about this and they were saying that well, what is wrong with having more health care and why are americans so against washington dc having this Better Health care system. You have heard this before and the way you think about this is wrong. The question you have to ask yourself is how would you feel if brussels took over your health care decisions. Now that they have power but they kind of have power over commerce and all of the laws of germany affect the other laws. And so that is the question that we dealt with in our constitution where they have this type of thing in the very difficult and local and agricultural laws and that kind of thing. Increasingly the government said we need control over all the facts and the soon to make a carefully crafted situation were better and that is the way that the law extends. And its happened in amsterdam, all of those are impediments to some sort of steam coming out of brussels to rationalize the entire european economy. And these local laws are dependent congress and they say, yes, they are. And you cant make that argument. This is a difficult problem. Someone comes along and says that we have power over those who do not Purchase Health care because they have an effect on Commerce Committee only thing that we can say is yes, they do. So you have to articulate a vision that says individual health care is the type of thing the commerce does not apply to you. It is limitless. And we did win that battle we will talk more about that. I just want to make if u. S. Comments. It wasnt a win in many ways. The second worst thing besides getting kicked out would be the Supreme Court of giving choices to people to Purchase Health care or not and states to expand medicare or not. I was the second worst thing. Because as i have explained along the way it works, now we can articulate it in the mandate is like a no parking sign and they say you can park there and pay the fine. And that means that there is no studio to reassess the law and you can no longer have the legal command of what is needed to work even if it was going to work. So that was the worst thing that could happen that will make this out of control faster than before. The challenge we have Going Forward is the reason the slot at work was not because of government power because they took too much. That is the fight we are always in. Next question will be the Supreme Court give them choice and that is a loophole in the gave the stoats and translates choice there wasnt enough power in ozawa polos. And the loopholes or your freedom. And freedoms are not loopholes in the system of limited government and thats what we have to deal with Going Forward. Thank you. [applause] [applause] thank you. I would like to thank the Heritage Foundation for organizing this event. Developed a clash would what between the two divisions of the constitution and federalism. On the one hand you might have the new deal vision by the majority of legal what academics and many other people do it from the political left and hold that especially after the new deal, congress has and should have the power to regulate virtually anything that affects the National Economy and claimed the vision will be able to deal with the modern uncomplicated interconnected economy and should be left of the political process rather than the judges for many Different Reasons including the fact they dont have the bureaucratic administrative expertise and the way the federal bureaucracy does. On the other hand on the opposing vision that says congress should be limited by the list of the new rate and power that is a enumerated in article 1 of the constitution were and budget initiation and forced the boundary of power and also holds one to enforce the boundaries because having the federal government would do much power is actually harmful rather than beneficial. The and i think that it became clear that the deed over the individual mandate in particular was in fact a clash between the two competing theories of how to interpret the constitution because the argument for the mandate under the Commerce Clause false walls is the idea that congress can regulate people that have no Health Insurance and are forced to buy Health Insurance. Why . Because not having Health Insurance in the aggregate affect the National Economy. And the problem in this argument is that of course the same thing could be said for any decision to do anything or not do anything anywhere else and 40 American Society for example is certainly applies to the famous analogy that was discussed during the debate over the cases that were discussed in the book. If you choose not to purchase brockway, that certainly has an effect on the market for food and other parts of the economy. If you choose not to exercise regularly, that will likely reduce your economic productivity and also have an effect on the economy that can make the same analysis for pretty much anything else that you can think of. The core argument for the mandate essentially has no limits. Moreover also made many of the congress and powers and article 1 of the constitution redundant. For instance of the power to regulate interstate commerce enabled the congress to regulate or restrict anything that might have an effect on the Economy Congress doesnt need the power to coin money after all it has affected the economy and it doesnt need the power to raise armies. That certainly has an effect on the economy and i can say similar things for virtually anything else on the list of Congress Enumerated Powers were. Recognizing this problem, the federal government and other defenders of the mandate had what i call healthcare special argument. This is a special market that is different than anything else. In the book we go through all these and i will mention the one that was most often the health care that was said unlike most other products everybody must purchase it at some point in their lives. To some extent, this is true. But what is the focus has shifted from Health Insurance, which is what you are actually required to purchase two health care which is just a broad category. By the same kind of to which i could also be justified broccoli mandate. Not everybody likes to rock the as much as i do. Many people do not purchase it but need broad market for food, which brusquely is just one part. It even more difficult to avoid in the market for health care that has tried avoiding if and i can make a similar analysis for any other product. Mabey unlike all of us you dont read the conspiracy, that you do get information from some source in the Broader Market information. So, we can be justifying the mandate requiring all of you to lead the conspiracy everyday by the same kind of idea maybe you should have that mandate. You get the point well. The government created a very as clever and sometimes not too clever arguments. They spell the the cut apart under close inspection. Now why would like to talk about the active case that got a lot of attention from the legal experts and i think less from what experts 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 and combined with a ladder that gives congress the power to enact any law which is necessary and proper for caring into the execution any powers granted to congress. Going back all the way to the famous 1819 case in maryland, the Supreme Court has defined the necessary extremely broad and anything that is useful or convenient, and we knew going into the case it is unlikely the Supreme Court would overrule that decision even though i and others such as James Madison and Thomas Dickerson have had some problems with it, but we were not going to win on that. However, we felt and theres a lot of evidence to support this, that the improper loss required not only that it be necessary but also that it be proper. That is what several of the Founding Fathers set and the Supreme Court said previously as well. The question is what is the proper mean in the brief that i still on behalf of the Washington Legal Foundation and we argued that the very least, proper means that you cannot justify the law by logic. It would give Congress VirtuallyUnlimited Power whereas James Madison would set a better meeting they have, none can be admitted giving an unlimited discretion to congress and as it turns out, the federal government here were under the case but in fact deal with that unlimited discretion and that is why actually it provides the justices that ended up rejecting the necessary and proper argument and actually get the most thorough treatment of the proper aspect of the necessary and proper clause that the Supreme Court had actually ever given in its 200 year history. They concluded that the proper may enable you to create some sort of chancellor a power to limit the enumerated powers, but not to create the independent power. In other words it can be used to pin the tail on a dog, but not in a dog on the tail which is essentially what the federal government is trying to do. And much more could be said about this, but i think it is one of the mark important parts of the Supreme Court decision. One that deserves more attention. I just discuss a lot in the book and also have a separate article which is written about this. Finally, in the last couple of minutes i have i would like to briefly talk about role of the bolten conspiracy in the debate. Part of it is that some of the arguments confused by the people challenging the mandate were in fact first developed by some of us in the conspiracy especially by Randy Barnett who was according to the New York Times the godfather, the constitutional case against the individual mandate, but i think that perhaps it is almost an equally Important Role to be seen within breaking down the perception that the other side of the debate was trying to create the start that virtually all experts agree that the mandate was clearly constitutional. So if you thought it was unconstitutional, either you were an ignoramus and didnt know anything about the constitutional law or you were a partisan for the gop or some kind of Interest Group perhaps and i think that the conspiracy helped break this down because early on, we put out a lot of arguments against the constitution mandate like Randy Barnett were and others being a prominent in the constitutional scholars to could not therefore we over time many people didnt agree and have to recognize there was a debate as opposed to a slamdunk for the federal government. Moreover, the format enabled us to influence this debate in a way that we might not have been able through the traditional means for a couple of reasons. One is the conspiracy thanks in large part to the work not much involved in this case but that they found upon and had a large preexisting audience on legal scholars, journalists and others who were influential in the the date when. Because when we get post almost instantly any time we wanted, we could expose and realtime the claims made by either side in the debate. And that gave a tremendous advantage over doing things in the conventional media or through writing fell law review articles which were great. I write them myself but they take many months to come out and many journalists who are not experts were not able to read them. I certainly did not argue that the conspiracy was the only factor in the day or even the most important. It clearly was not in the book that we discussed with many other factors that were relevant but political and legal but i do think that it is an interesting example of the sphere having a significant influence over the the date and the Supreme Court case and i suspect that similar things are going to happen in the future. And it will be interesting to see how this technology develops over time and how it continues to influence of the legal the date. So, on that note, i would conclude and i very much look forward to your question. Thank you. [applause] with all right. Thank you to the Heritage Foundation and john malcolm for the visitation to be here. To talk about. I wanted to pick up where you left off talking about the book and the posts that make up the book. What were we doing when we were writing those posts . There were ways in which the format was changing the nature or at least some aspect of the Supreme Court at sea and blending some old categories. So i wanted to think about one the blog post that made up the book and think about how the law in particular may be changing the constitutional debate. The material in this book being just one example, the first public example of how this might happen. And i what led me to think about the book in this way is that i happened to have the page at my desk at the same time i had an article. Some of you may be familiar with of the marriage professor of the university of michigan. Was a giant in my Academic Field procedure. And in the 1960s, when he was a young academic he wrote a series of articles really rethinking some of the basic understandings of the nature of the constitutional criminal procedure which had been very narrow up to that point. He came along and said you know, i think that we are treating the case is wrong. We are reading the history wrong. We should think about a new role for the Supreme Court and he laid down in the article and published a traditional journal and in some cases of the chapters in the book new ways of thinking about a constitutional possibilities. For example, the miranda rights of the decision in the 1960s is part reflecting an idea that the fifth amendment should not be limited to the courthouse but it should also apply to the interrogation and that was the argument that they had laid out and there was this sense that you have going back looking at the articles from the 1960s and then the Supreme Court decision that followed that he was playing a role in changing the terms of the debate on the academic place to say here is a new possibility with two or three years later the Supreme Court would come out with a decision often citing in some ways echoing the idea that he laid out and that was an example i think of an academic sort of engaging in what you could consider Something Like advocacy support, a way of pushing and opening up the possibility. And in that case it was a political label, will come academic pushing the Supreme Court and a liberal direction. And i think there are ways in which what we saw was on the conspiracy the mirror image of that. The sort of academic opening of the new conservative. Again, just kind of putting labels on things. Pushing along and offering ways to push the law in a more conservative direction. Theres a prime example of some of the ways that this dynamic occurred before. And what is interesting to me is the way that the dynamic is different. Even though there are some similarities there. One aspect that was mentioned stressed the time element. So, looking back you have an article and then it would come out a year later and then there would be the case three or four years later. The internet just changes all of that. So, one change that is worth reflecting on that is obvious today is stunning 20 years ago is the fact that you could even get opinions quickly. I was a Normal School in the mid1990s at the time it was still mostly waiting for the opinions from the library. But take a couple of days or weeks or months to come out with opinions if he wanted to know what was held and of course today is the opinion. It is frustrating. They released an opinion at 10 00 and sometimes you have to wait until about 10 15 or 10 40. [laughter] why is the opinion of in front of me at . And then you have a lot of free time and think i want to write on this opinion and i have to get my opinion now and think in terms of the minutes or hours not in days and weeks and months. Its become instantaneous and then that counterpoint is instantaneous, too. Many of them are on the same day over a period. Effectively it is occurring in real time and in a very public way that anyone can read over more than a decade you can have a long list of those that want to go and read about and if you are really bold, go through the 500 comments and you can add comments. They are as many as you can have in a realtime. And the speed element is new. So one aspect of the case is how the perception of the argument and the argument themselves are more filling in real time. The Public Attitude about the arguments were changing. It was happening really, really quickly. And i suspect that sort of example of how what is going to be. The new world that we are in. And, the second point i want to make abou