Transcripts For CSPAN2 Book Discussion On A Conspiracy Against Obamacare 20140112

About a fascinating book. It was a fasting book about a fascinating case, National Federation of independent business is versus sebelius, better known as the obamacare case. As i read this book i thought that i was really watching some very, very smart people who obviously respect each other but youre 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 anywhere in which they will speak it will start off with trevor burrus. Trevor was the editor of a conspiracy against obamacare. He is a Research Fellow at the Cato Institute center for conscious constitutional studies where his interests include constitutional law, civil and criminal law, legal and political philosophy and legal history. Trevor got his undergraduate degree at 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 about how some of the current problems that weve all been reading about with respect to the Affordable Care act relate to the case. Next we will hear from professor ilya somin. Elliott is a professor George Mason Universitys 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, masters from harvard and gestures doctor from yale law school. On graduation of law school he clerked for the fifth circuit judge jerry smith. In 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. Ill you will 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 the fred c. Stephenson Research Professor law at George Washington law school. A masters from stanford and gestures doctor from harvard. He clerked on the Third Circuit and then on the Supreme Court for Justice Anthony kennedy. Orin is a nationally recognized scholar in areas of criminal procedure and also computer crime law. He worked for a while in fact at the department of justice computer crime and intellectual property section. Is argued many cases throughout the country including the u. S. Supreme court, and his articles have appeared in top legal journalism. Orin the Randy Barnett described as a one man 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 commentators have played in other Supreme Court cases. Last but certainly not least well hear from Randy Barnett. Randy is a professor legal theory at Georgetown Law Center where he teaches on a whole variety of subjects. Is a graduate of Northwestern University and harvard law school. He began his career as a prosecutor in the Cook County State Attorneys Office in chicago. In 2004, he argued that medical marijuana case before the Supreme Court and that featured a prominent terms of the analysis for the obamacare case. Is the author of over 100 articles and blog reviews as well as nine books, in Randy Barnett goes the role that politics played in litigation. With that please join me in welcoming our panel and then we will turn it over. [applause] thank you very much, john. And thank you to the Heritage Foundation both for putting this on and for helping out the litigation of this crazy case. I want to thank the volokh conspiracy my professor in law school for giving 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, and that was somewhat surreal thanks to working at the Cato Institute. Im going to get a few brief comments about the way i have always saw this case. 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 is because people forgot in civics class in seventh and eighth grade, particularly politicians who view the constitution as an editeentity to make in the world awesome which is pretty much often what they do. For someone to discuss just we have a frame of reference, the way the law works now, or doesnt work as the case may be but a general theory is important to realize this so we can talk about the future dysfunctionality of law and how this plays into the th way the e worked out. Obamacare is i would call it political subterfuge built on 3 in order to create a functional equivalent of a singlepayer system while still calling it a market. What do i mean . Its a political subterfuge. How . Well, they didnt say they were taxing. They just made you get your money directly to a private company. Why . Because they told this by the companies, the private insurers they had to cover preexisting conditions at a price controlled rate. So your Insurance Company when youre told you to cover all preexisting conditions and you cant charge more for that and you say, hey, what about the money . We need the money. The government has a few choices. They could subsidize the Insurance Companies and raise taxes accordingly, or the other, they could participate in the political subterfuge and make you purchase insurance so they wouldnt have to raise taxes. This is a huge part of the law, unquestionably part of the subterfuge. If you look at the cbo scoring of the law originally, cbo has with scoring were sometimes if you take control of an industry too much though consider that part of the cost. They asked the cbo while theyre drafting the law, they said how much of a percentage of whats called a medical loss ratio which is how much the Insurance Companies can spend on administrative costs, how much of that would make you include the cost of the individual mandate of the bill . They said 89. 9. 5 . Then the law said 89. 5 , exactly well put a writer so you are not include the costs incurred by individual people in the bill. So then what happens next . An idea of the death spiral which is the next thing you get, you need people to spend more money on insurance than they would otherwise. This is not a bug in the wall right now. This is a future. No way he could work otherwise. You have to pay more than you would otherwise for thing that you generally wouldnt cover so you could subsidize really sick people. The Obama Administrations biggest mistake was not selling this as a redistributionist law. People start funny out over the next year that this is a redistributionist law. The reason theyre paying more is exactly in the law. It is a feature. That will come back and bite them in the 2014 election in particular. So thats what individual mandate does. It subsidizes the rest of the cost of the law. 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 are simple. I was recently lecturing to a bunch of germans about this and they were saying, as you get from europeans a lot, well, whats wrong with having more health care . Whats wrong with this being the case . Why are americans so against washington, d. C. Having a Better Health care system . Your Health Care System is so bad. You have to say, the way youre thinking about this is wrong. The question and ask yourself as a german, how would you feel in brussels took over your health care decisions. Not berlin, but brussels. Brussels doesnt have power over that. Why doesnt brussels have power over that . Ththey kind of have power over converse why doesnt brussels of power over health care . Thats the question we dealt with hundreds of years in our jurisprudence in our constitution was commerce is the type of thing, now is very difficult to understand exactly type of thing that is, is a manufacturing, local agricultural laws . Whatever it is its a thing. Increasingly the government said we need control over all zones, all effects in december know to make our carefully crafted schemes work a better. Thats the way the Commerce Clause is meant. That will happen in europe. Mark my words come it will happen in europe. The drug loss of amsterdam, the manufacturing loss of germany, all of those are impediments to some sort of dean coming out of brussels to russia was the entire european economy. When they come to us and say what do we do, these local laws are independent to commerce, we said yes, they are because you cant make that argument. This was a difficult problem. If someone 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 a the type of thing that commerce does not apply to. Whether or not they affect. If your power extends to affecting the commerce, its limitless. I just want to make a few last comments about where we are Going Forward. It was a muchpublicized the day the decision, but it wasnt a win for the Obama Administration in many ways. The second worst thing would have been 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 could happen. As ive explained the law the way it works, now the way the Supreme Court articulated it is the mandate is like a no parking sign. You can park there in and pay the fine. That means they had, cbo had to reassess the law because it no longer had legal command of what it needed to work, even if it was going to work. So that was the worst thing you could happen and thats going to make this law spin out of control faster than before. The challenge Going Forward is to articulate a vision that says the reason this law didnt work was not because they didnt have enough power, its because they took too much. That is the fight we are all in the after this law fails, the next question, the Supreme Court give them choice and thats a loophole and to give the states choices and thats a loophole and the was in power and those all loopholes. In this context the loopholes are your freedoms. Freedoms are not loopholes in the system of limited government. Thats the fight we have to win Going Forward when 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. And also my fellow panelists and especially cover for doing all the hard work of editing dozens and dozens of blog posts, which is certainly not an easy task with so many extra pursue people involved in the project, getting them to cooperate is like herding cats only perhaps worse. So in my talk id like to start by focusing on oak is a clash of constitutional vision that this case represented, and then im going to talk to the end about the role of the volokh conspiracy and the public debate over this issue. I think ultimately this case developed into a clash between two competing visions of the constitution and federalism. On the one hand, you had what might be called the new deal or postnew deal vision which is held by probably the majority of legal academics and many other people also, especially those in the political left. It holds especially after to Deal Congress has and should have the power to regulate virtually anything that affects the national economy, otherwise claims its vision we so they wouldnt be able to modern complicated interconnected economy and in particular, in addition this stuff should be left to the political process rather than judges fro for many Different Reasons including the fact they dont have the bureaucratic and administrative expertise in a way that congress does or federal bureaucracy does. On the other hand, you have a posing vision which says that the congress should be limited by enumerated powers in article one of the constitution, and the judiciary should enforce the boundaries of those powers and also holds that its a good thing in the real world to enforce those boundaries because having a federal government with too much power is harmful rather than beneficial. 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. Because the argument for the mandate under the Commerce Clause is the idea that congress can regulate people who have no Health Insurance and, of course, 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 for american society, for example, sorting applies to famous broccoli and audi was discussed during the debates over the case we discussed in a book. If you choose not to purchase broadly, that 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 have an effect on the economy and that can make the same analysis for prima j. Thing else that you can think of. And, therefore, this core argument for the mandate essentially had no limit. Moreover, it also made many of congress is other powers in article one of the constitution redundant. For instance, commerce enabled congress to regulate or restrict anything that might have an effect on the economy, then congress does need the power to coin money. Coining money has an effect in the economy. It does need the power to raise armies. Raising armies certainly has an effect on the economy and i can do similar things for virtually Everything Else on the list of congress enumerated powers. Recognizing this problem, the federal government and other defenders of mandate trying to make what i Call Health Care a special argument. Saying this is a special market thats different anything else but in the book we go through all the. The one most often made, health care is special, it was said because unlike most of the products everybody must purchase it at some point in their lives. To some extent this is true but notice the focus has shifted from Health Insurance which is what you are required to purchase to health care which is just a broader category. By the same kind of basis which i could also justify the broccoli mandy. Not everybody likes broccoli as much as i do. In the market for food impacted it more difficult to avoid the market for health care. Just try avoiding it if you dont believe me about that, and i can make a similar analysis for purchase of virtually any other product. Maybe id like all of us you dont we do volokh conspiracy what you to get information from some source somewhere. Its all part of Broader Market participation so we can justify mandate requiring all of you to read the volokh conspiracy everyday by the same kind of that idea. Maybe you should have that mandate. So you get the point, while the government created various clever sometimes not so Clever Health care arguments, ultimately they fell apart under close inspection. Id like to next talk about an aspect of the case they got attention from legal experts, and that is the necessary and proper clause. Even if the mandate was not authorized by the Commerce Clause, maybe it could be authorized by the Commerce Clause combined necessary and proper clause. The latter gives congress the power to enact any laws which are necessary and proper for carrying into execution, other powers granted to congress. Going back to the famous 1819 case of mocha with the maryland, necessary extended broadly as anything that is useful or convenient and we knew going into the case goes are unlikely the Supreme Court would over let definition even though i and others such as James Madison and Thomas Jefferson have had some problems with the but we werent going to win on that. However, we felt and theres a lot of evidence to support that, necessary and proper clause requires not only the law be necessary but also it be proper. That i get is what several of the Founding Fathers said at the time the Supreme Court has said that previous to this case as well. The question is what does proper meaning and a brief that i develop on behalf of the washington legal foundation, we argued at the very least proper means you cant justify a law by logic. It would give Congress Virtually Unlimited Power were as James Madison put much better than i could, whatever meaning this clause may have, none can be admitted that would give it unlimited discretion to congress. As it turns out, the federal governments theory of the necessary and proper clause under the case would, in fact, given that exact unlimited this question and thats what actually five justices ended up rejecting the necessary and proper argument indeed the most thorough treatment of the proper aspect of vanessa and proper clause that Supreme Court has ever given in its 200 you history, they concluded that properly enable you to create sort of ancillary power to one of the enumerated powers but not getting great independent power. In other words, necessary and proper clause can be used to pin the tail on a dog and not to pin a dog on a tilt which essentially is what the federal government was trying to do. Much more to be said about this but think this is one of the important parts of the Supreme Courts decision one that deserves more attention. I discuss a lot in the book, you should have a separate article which i have written about this. Finally in the last couple of minutes i have id like to bring to talk about the roles of the volokh conspiracy in this debate. Part of it was that some of the arguments used by the people challenging and mandate were, in fact, first developed by some of us at the volokh conspiracy, especially by Randy Barnett it was according to the New York Times the godfather of the constitutional case against the individual mandate, but i think almost equally Important Role wasnt breaking down the perception that the other side of this debate was trying to great especially at the start that virtually all experts agree that the mandate was clearly constitutional. So they thought it was unconstitutional, if you are like an ignoramus and the neverending about constitutional law or you are a partisan hack. You were a hack for the gop or some kind of Interest Group perhaps. And i think the volokh conspiracy helped break the stomach is early on we put out a lot of arguments against the constitutional mandate and people like Randy Barnett, david and others being prominent constitutional law scholars, they cannot be dismissed as either ignoramuses or hacks and, therefore, overtime many people include many people didnt agree with us had to recognize it was a real debate here as opposed to a slamdunk sort of federal government. Moreover, the blog format enabled us to influence this part of the debate in the way we might not have been able to through traditional means for a couple reasons. One is the volokh conspiracy thanks in large part to the work of Eugene Volokh was not much involved in this case but did sound of the blog, it had a large preexisting audience on legal scholars, journalists and others who were influential in this debate. Secondly, because we can post almost instantly anytime we wanted, we could respond in real time to claims that were made by the the side in this debate. That gave us tremendous advantage over conventional medium or through writing law the articles which are great. They take many months to come out and very few journalists who are not experts are likely to read them. I certainly would not argue that the volokh conspiracy was the only factor in this debate or even necessary the most important are particularly was not. In the book we discussed many of the factors that were relevant both political and legal but if you think this is an interesting example of the blogosphere, having a significant influence over debate related to Supreme Court case. I suspect 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 legal debates. On that note, i conclude that i very much look forward to your questions. Thank you so much. [applause] thank you to their get foundation in particular, John Cochrane for the invitation to be here. To talk about the book. I wanted to pick up where you left off talking about the book and folks that make up the book. As blog posts, what were we doing when we were writing this blog post . Because i think there are ways in which the blog format are changing the nature or at least some aspect of the Supreme Court advocacy and planning the categories. I wanted to think about the blog post here as blog posts that made up the book and think about how blogs in particular may be changing the constitutional debate. With really the material in this book being the one example, maybe the first example, first public example of how this might happen. What led me to think about the book is what is i happen to have the book on my desk the same time i had an article about yale, emeritus professor at university of michigan whos a real giant in the academic field, and the procedure, in the 1960s when he was a young academic he wrote a series of law the articles really rethinking some of the basic understanding of the nature of constitutional criminal procedure which been very narrow up to that point. He came along and said i think we are 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. He lay down in a sears of articles published in traditional journals, in some cases and chapters in books, new ways of thinking about constitutional possibilities. For example, the miranda rights, the decision of 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 point in the station house during interrogations and that was the argument that he had laid out. Theres a sense yet going back looking at his articles from the 1960s and the Supreme Courts decision that followed that yale kamisar is playing a role in changing the terms of the debate. The academic voice saying heres a new possibility and good enough. Two or three years later, the Supreme Court would come out with a decision often citing yale kamisar, in some ways the ideas he led the. That was in sample i think an academic engaging in or you could consider Something Like advocacy support or do we pushing the court, opening of the court to the possibilities. In that case it was putting political labor label on it. I think there are ways in which we saw with a blog post at the volokh conspiracy, a mirror image of that. Sort of academic opening up new conservatives against putting labels on things, pushing the law often ways of pushing the law in a more conservative direction. So i think theyre sort of, theres a prior example of some of the ways in which this dynamic occurred before. Whats interesting to me is the ways in which the dynamics are different. Even though theres some similar his. One aspect and one that tried to mention is time element. Looking back at the 1960s, kamisar was writing an article and it would come out a year later and then it would be a case three or four years later, maybe a five year time when the. The internet just changed all that. One change which is worth reflecting on us which seems obvious today that was done in 20 years ago is the fact you can even get opinions quickly. You know, when i was in law school in the mid 1990s, and at the time it was still mostly waiting for an opinion from the library. Takes a couple of days or weeks or months for west to go with the opinions if you wanted to know what a court had held. And, of course, today, its frustrating if anything a judge released an opinion at 10 00 and sometimes you have to wait until about 10 15 or 10 30. He keep hitting refresh, refresh. Why is this not economy yet . [laughter] then theres a sense if an academic and have a lot of free and have a lot of redundancy i want to write on this opinion and it got to get my opinion out and you think in terms of minutes or hours, not in terms of days, weeks or months. The debate as trying to had suggested has become instantaneous. Looking through the blog post of this book, many of them were on the same day, or over a period of two or three days. So effectively the debate is occurring in realtime. And in a very public way. Its a site that anyone can read and a site like the volokh conspiracy that is built up readership over a decade can you could have a lot of law nerds that want to follow the debate over new cases, can go and read about, read counter argument. If youre really, really bold, go through the 500 comments. I should say really, really, really bold. You can add comments. Comment on comments, as many debates as you can all in realtime. The speed element is a news. I think one aspect of the case is how the perception of the argument and the argument itself is morphing in realtime. Public attitudes about the arguments were change in realtime. It was just happening really, really quickly. I suspect this is an example of how its going to be, sort of the new world we are in. The second part of wanted to make about this is that blogs about an interesting mix, not only of the role of scholar and advocates, scholar advocates and litigants. So those are 2009 law review note in the stanford law review called ex parte blocking. Interesting question about the ethical limit under the legal ethics rule of blogging. The author has the following concerns but if you have a blog that folks are reading them you have an infinite resource of electrons to offer to any particular case, by the time the briefs are filed, the breeze can be an afterthought. Its blogging that may set the terms of the debate and is only one side is blogging, then once ive essentially sort of gets the file infinite briefs, right . They will keep writing about it, and are there limits on one side ability to blog about a case given the blog posts, amicus briefs or mayor the breeze in disguise. I tend to think those concerns are overblown because ultimately its a public site, april discussing a case, in the same way that somebody should write an oped or have a conference about a case to blog posts are sort of an extended version. At the same time i think you can have a very high profile cases blogs really changing the nature of debates on pending cases. In that if there are blogs a lot of people in the Legal Community are reading, you can have posts that kind of change the understanding of issues. Debate issues in way that i remember when i was a Supreme Court law clerk i served in 20032007, i read blogs. Pretty much the other law clerks did as well. If youre a law clerk and theres a blog post about the geisha working on that day, youre probably going to be interested in reading it because this something that might be relevant to what you do. Its out there and she might find it. So we are seeing an interesting blend where, as i said, the mayor the breeze become yet another round of breathing in what can happen as a public debate. I think in the Affordable Care act case that was an example. If you followed the blog post for a long time they were kind of repackaging and slightly altering arguments that have been debated in the public sphere for a long time. I suspect thats just a game going to be something that we have happen more and more in the future, kind of wonder what the Supreme Court litigation look like in 20 or 30 years. You can have the official blog of the case, right . And then theres the brief, a legal brief that was filed in the case. Justice scalia will only read the briefs. [laughter] you will scoff at these blogs are out there but you can imagine others will say, well, if i want to know the extended version of the argument, i dont have im really interested in a specific issue, look, theres a series of blog posts on this specific issue. You can go to that if you want to know more. I dont know if the official blog post for particular case or there will be like the doj blog where they get to offer their version of this. But i wonder if blogs will play this broader role. To my mind ultimately that will probably be a good thing because if you dont want to be active, you dont. The blog shall be the. But its another voice out there which will hopefully lead to better informed opinions by the court. I think it is a change here and were seeing more and more of a blend of the role of the volokh conspiracy. The Affordable Care act case i think was the example of how of the blending role. Leading to the brief being one of many parts of public conversation. Thanks for having, and look forward to questions. [applause] 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 arguments against constitutionality of obamacare were aired in this very room, and Heritage Foundation, in december 2009. I was on a program organized by the Heritage Foundation in which we presented a paper that we wrote for heritage in the weeks, arguing for why the Affordable Care act was unconstitutional which is not even come out or had just come out of committee and it was a paper i wrote with todd of Heritage Foundation and very important Nathaniel Stewart was been a legal associate to help do some of the heavy lifting on the drafting, and we wrote this paper that we presented in this room. I remember meeting orrin hatch in the green room right outside the door because he was the keynote speaker, so first he spoke, gave a wonderful speech about why the act was unconstitutional. Neared most of arguments and then i had a debate about it. I argued it was unconstitutional to who did the Heritage Foundation take up to argue that the law was constitutional . It was none other than Eugene Volokh, the head of the volokh conspiracy, the founder of the volokh conspiracy. I always thought one way the other is he was already on record in the debate as arguing it was constitutional and he just sort of wanted to stay away from the subject from them again as the arguments developed. This all happen in this very room and Heritage Foundation deserves credit for what happened in the challenge but the other thing, probably less wellknown, we have this public event was immediately after the public event we went upstairs to a lunchroom in which we breathe congressional staffers on the argument and this was crucial because up until this point although the senate has a procedure in which you can make a point of Constitutional Order to object to the constitutionality of the bill, it was not clear theyre going to make such an objection because it is not clear that they knew why the bill might be unconstitutional and it was a during the briefing the private racing we had with a staffers upstairs in this building which we laid out the argument that subsequently shortly thereafter Senate Republicans did make a constitution. There was a televised debate on cspan which brought to the public for the first time the arguments that were against the constitutionality of the Affordable Care act that we each making that argument. It all started here and here we are again. Before i say much more, i just want to point out something that hasnt been set up to now and im glad it hasnt. It gives you something is a. That is, this is a terrific book. Its just a really good book. I was getting ready this morning and is trying to psych myself up to participate in everything i went back and i decided i would read a bit of beginnin of the bo run myself what was in his. This was sometime ago and i started reading it and i couldnt put it down but i just kept reading it. It wasnt only my own stuff i was interested in although i like that stuff, too. It wasnt just me. It was just a fascinating read. So i want to urge people who think, i watched the program, why should it be devoted . Is the book is really interesting debate. Its just a nearly interesting and dramatic as you see it evolve and emotions that come out of these various blog posts as we debate each other. It also you learn a lot about constitutional law. It is like a tutorial on constitutional law. You read the counter argument and then you read the counter to the counter argument. Youre going to understand constitutional law all whole lot better. In part because orin serve as the protagonist. He was a resident house skeptic. He was the person i didnt buy any of the arguments we were selling. He was just absolutely persistent in objecting his dissent in a very, very powerful way and just made us refine our arguments the present our arguments. If it hadnt been or his contribution, it wouldnt have been done this way. Before i go on, some of the people who may be watching at home might be thinking why the heck is a book about the challenge to obamacare when the challenge to obamacare failed . Whats the point . We all know the Supreme Court, we think we know the Supreme Court upheld the Affordable Care act, so whats the point of the book . The news i is and people of you know any people in the room already know, but after you may not know is that we succeeded actually in our legal argument in the case, paradoxically. There were always two different issues in this lawsuit. One was to say save the country from obamacare, and the second was to save the constitution for the country. By the constitution, i mean the enumerated powers given in the constitution this is that congress only has limited and enumerated powers. In the arguments that were being offered by proponents of the Affordable Care act constitutionality, both the government and academic enablers are using arguments that wouldve virtually eliminated the enumerated powers theme of the constitution. So if we are lost this case in a certain kind of the way we wouldve not only inflicted this egregious and completely misnamed Patient Protection and Affordable Care act on the country, but in addition at the same time we wouldve eliminated the enumerated power scheme that the Supreme Court has never repudiated in the history of this country and that wouldve been a disaster, a constitutional disaster. That is what we avoided. We did not seek we did not succeed in bringing down the entire act, although we weakened it in certain ways, but we did succeed in saving the constitution by getting five votes Corporate Legal positions that most legal academics thought were mistaken. So in order to summarize im just going to read for bullet points that come out of my concluding remarks in the book as to what we want any 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 regulate and national economy. On this, we won. We fought this case to prevent and end run around the limits on the commerce and this is a proper clause by using the tax power instead. On this, we won a partial but significant victory. Finally, we fought to establish the conditions on federal spending, unconstitutional. Sg just away rehnquist stated in south dakota v. Dole. On this, we also when. These were very important points of constitutional law. To the extent constitutional matters to the decision of the court, then weve established some very good constitutional law in the course of fighting this fight. In the time i have remaining, i want to make basically two different points. I want to cover two Different Things. One is about the traditional philosophy and the others the role of politics played in the case. First, judicial philosophy, briefly in part the reason why we ultimately failed to defeat obamacare in court is part of the wages of crying judicial restraint, that judicial conservatives of various political ideology look strikes have been advocating for many, many years. It started with the political progresses, argued against the Supreme Court and having laws that were beyond Congress Powers, in the name of judicial restraint. This was taken up during the Warren Court Era but political conservatives. Also argue for judicial restraint. What we now have is a judiciary is in part been selected and chosen by republican president s and confirmed by Republican Senate who have adhered or claim to adhere to a philosophy of judicial restraint in which they will defer to what they consider to be the more authentic or accountable branches of the government, either congress at the federal level or state legislatures at the state level. This has been a big mistake. It has been a big mistake but one reasons why it is possible for john roberts to save the law by adopting construction, which was not what the law actually said but i do construction or to uphold the law was because he had behind them sort of the temples of judicial restraint that put him on the court in the first place, and that other justices on the court. It is almost a miracle that four justices who also got on the court adhering to the recent strength of judicial restraint after realize that at this point it was time for judicial engagement. It was time for the court to say no to congress and this is certainly a part of its constitution delegated authority as a separate and coequal branch of government. The courts have to say that measures within Congress Power without different to Congress Judgment that matter is within Congress Power. So its time i think in this country do we start selecting judges who are prepared to do their job in Holding Congress to its powers in less we are to ask them to do that job, they are not goin going to. The last thing am going to talk about is the role that politics played in this case, because certainly it did play a role in this case. I want to identify exactly what that role is and what up until now and what might be Going Forward. Wanted to post that came out in the book that i posted in response to one of her post is when i identified three different sentences. Will use the term constitutional, whether this law or is not constitutional, these ambiguous. Theres three Different Things we could mean. First of all we could mean what it is the constitution says, is a consistent with what the constitution says and what the constitution means . Thats the oldfashioned way of doing it. Thats the archaic way. Thats one way. In this since theres no question that not only is the individual insurance mandate unconstitutional, but the entire act is. The regulation of Insurance Companies themselves are unconstitutional although we didnt challenge that because insurance is not commerce under the original meaning of commerce. So thats the first since. What is the constitution for and what does it mean . The second is what has the Supreme Court said in the past . What did it mean when it said that . This is constitutionality according to president. Positive shun it according to what the Supreme Court has said. That is what we were debating on the blog whether the Supreme Courts precedent said this was unconstitutional, where the law was constitutional or some unclear allowing this to be a case of First Impression which would require lower court, 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. The third sense of constitutionality is either five votes to strike down a law or to uphold the law courts thats the third. Are there five votes. When im interviewed by reporters about whether medical constitutional or not, thats generally speaking what you want to know about. View predict its going to go down over its going to be upheld . Unfortunately i think thats what most law professors when the quoted can find there a penny to. They predict it will be held or struck down. Thats a separate sense of constitutionality in the first two and we need to keep these 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 five votes or not five votes. As i noted early on in this book, in a blog post, those who are constantly predicting the Supreme Court whenever and validate 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 his past would be popular. But what if he was very unpopular . The courts are very theyre not as has and to invalidate a law that is unpopular. What if not on the law was unpopular, one or both houses of congress split parties as a result of this . Supposing a review the effort was made like a filibuster in the center it turns out the republicans didnt take the senate so there was no need to filibuster. How would that affect the willingness of five justices to invalidate this law . I think it did affect the willingness of the. The Supreme Court of the United States is a very main street institution but it always has been and always will be, in part because of that justices are selected by the president of the United States and confirmed by the senate of the United States. There may be some who were on the right side of that and some justices are somewhat on the left side of the main street but you dont get to be a Supreme Court justice or a court of appeals or District Court judge in less your relatively mainstream and you think mainstream. So it matters whether mainstream is. This book and a blog post that took place, the blogging that took place as well as what happened well beyond our when the Heritage Foundation came out with its paper and then there was a cspan debate and talk radio to pick up on this immediately as a result of the cspan debate. I started getting phone calls after that debate was on cspan asking me my opinion. Once that happened, by the time in march there was already an important Public Awareness of the constitutional questions that are raised by this case. Ive never seen anything like it in my lifetime. I dont know that well ever see anything like it again with the public is falling District Court proceedings way before the Supreme Court gets involved. And this politics is still working. This is the concluding remark im going to me. We would not have gotten five votes with the propositions i just read to you if 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. There are challenges based on interpretation of the statute, whether subsidies, federal subsidies, for example, concluded people are participating in the federal exchange as opposed to state exchanges. Theres very important constitutional challenge about how this bill which was a bill to raise revenue originate in the Senate Rather than in the house as as a constitution reqs a to b. , socalled origination clause, challenge that is currently pending in the d. C. Circuit court of appeals. Whether these lawsuits have any legs or not, whether they will get any tractions, and the third sense of constitutionality, that is, can you get to five votes will depend on whether obamacare, the Affordable Care act is popular or unpopular. And whether the court believes it is actually disrupting or interfering with the public good when it would invalidate or rather be doing the public a big favor it over 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 pair by basically making private Insurance Companies regulate. They get a lot of money out of it but thats really whats happened, and we are seeing the consequences now. And by the way, its not just the face plant laws done out of the tunnel as its run onto the field. Just wait till it starts working the way its supposed to work, then you will real see the problems with the Affordable Care act that we put in a brief to the Supreme Court. Without i thank you all for coming and to look for two comments and questions. [applause] we will now take questions from you. Announce who you are and your affiliation. Keep it short and sweet. And ended with a question mark. So with that, does anyone have any questions . Yes, down here. Im andrew clark, im here with illegal center from the Heritage Foundation. So youve identified a number of good things that came out of this case. The law was upheld on one hand but you got the public engagement, youve got blog and things that are not engaged and you got a lot of good president but my question is, have you seen any district or Circuit Court opinions where nfib has been cited favorably or any of the good law that came out of the case . Yes. One of the debates that occurred in the immediate aftermath of the case is whether the material in the course opinions with respect to the Commerce Clause, the necessary and proper clause is binding. Some claim was upheld as a tax. The chief justice is controlling opinion said it was part of the president , he would have gotten the issue did not please the world that this is invalid as to the Commerce Clause and necessary and proper clause because thats what then led him to reinterpret the law so as to make it constitutional. And to make a long story short, there have now been so distant court of appeal decision which do in fact treat them as parts of the ruling as binding precedent. Theres one District Court opinion to the contrary, but on the whole lower courts are taking the decisions seriously. So i think over time they will be seen as binding precedent, as we discuss in the book the are some points which are not fully clear. Its not entirely clear how we draw the line between a great independent power versus merely incidental. At something the court will likely have to consider in future decisions. Its very important applications in this case which is overwhelmingly accepted that i think its not even discussed. And that is that the way the law was upheld by chief Justice Roberts is a bill to enforce what used to be an entrance requirement was upheld precisely because it was so low and reasonable that it reserved the choice or option of people to either pay the penalty or by interest. It wasnt coercive. Thats the reason it was upheld. Had the case been upheld aside under the commerce transit or even under the tax power had advocated, congress when the penalty turned out to be too low to actually get people to make the bad deal to enter into the bad deal that obamacare is making them enter into i buy insurance thats vastly overpriced and redistribute mechanism to pay for someone else, when the penalty proves to be too low, as is often upheld, congress wouldve been free to raise the pay a sizable to ticket people in. They couldve made it a, offensive not have insurance. They cannot do that now. Theres a Supreme Court precedent which says they cant do that now. Because they said this is only being upheld as a tax because its low. It is a low own and, of course, maybe they could raise it a little bit. Im not saying they couldnt do that but they certainly cant treat us the way the drug laws are treated, cindy to the penitentiary send you to the penitentiary. I dont think theres anyone out that if congress targeted at the would be a serious constitutional challenge. They would probably be more than five votes to strike down such a law. The question of when they start racing attacks come which they will have to in order to combat the increasing price of insurance on one side because not enough help for buying insurance, not declared constitutional line where that comes coercive. It becomes the new baseline like the south dakota v. Dole for individual coercion because south dakota vtol case which is dashing they said 5 of highway funds was not enough for diversion and then he went to Medicaid Expansion the same question up with how much you have to charge a person before you actually unconstitutionally coercing. Yes, down here. Im jason miller, a law student, and i a question in your blog debates in the previous discussion leading up to the case. Did the religious freedom issue, up . For example, [inaudible] they did but theyre not in the book. I focus the book on most of the Commerce Clause, but those are angrily important issues. Incredibly important issues. That apparently is progress. Back by the way is ongoing and the volokh conspiracy. Gerald handler. You think there will be missed the lover from the worries about nasa and government buying and selling to this case . That is to say, our people more worried out powers of government and they dont want spillover to where they dont want the government to be able to control the health care quirks one thing that hasnt happened yet and i dont know when its going to and that is the medical additional records. It is not just this outcome of the previous five that didnt start with obamacare means youre not going to have to the nsa is not going to have to monitor cell phone and emails to figure out tennessees behalf. It will be digitized and within reach. Inadequate to do enough to prevent them from accessing it. Every illness you got, everything is going to be that something the federal government has access to because of the mandated digitization about their medical records. The public has not focused on this. I think the nsa surveillance issue, one this other thing could very well spill over into this aspect of medical care. One other thought. One thing that made the obamacare case unusual and remarkable and give it legs is the fact that it aligns so neatly along political dimensions. Randy was suggesting a broader role of politics but in todays. I would put it even more starkly. The idea that obamacare became unconstitutional became the position. Everybody who was the republican was the outlay. Someone who said backing up the other way. I didnt know you were a liberal. Im not. People look at me funny and say thats pretty strange. If that were the case, there is there that she send them part of a plan. It is very much part of a plan to make it a partisan issue said that you would have open possibilities for folks that otherwise might not have looked that way. Im issues like the nsa, theres a division of both Political Parties come much keep the narrative from happening. Also one little point, two, one parallel is my former colleague or employee randy balko writes about police issues, cops breaking into your house and thats what my favorite quotes from libertarians seem like what is libertarianism happens to you. You might not be a libertarian until the cops are breaking into your house. One of the things of the lessons you can ignore government easier on a new little tax cut a Regulatory Agency thats probably affect businesses more than you. Telling businesses that they can sell. The nsa is directly affect an individuals and the way people are starting to realize in the mandate is directly affect individuals. Suddenly libertarianism is happening to my people than before. Alicia caro from the Cato Institute. I want to ask a different question. Not necessarily about the obamacare litigation. How did this episode and the role of the conspiracy affect legal academia in the sense that it used to be a pure blogging, not only was that useless waste of time, but it would count against you that youre not a serious academic. Now obviously all of you who are academics on the blog are very successful. Is this an anomaly . Is it now becoming if you want to be at the highest superstar reached, at least for a certain generation, under 40, whatever the case may be, that you do have to make an attempt to join one of these group loads and side effect in the debate both in the public engages reading your blog and things like this. What kind of effect does this book, the highest example, this sort of thing, changed the way law professors and intellectuals . So i think theres been a change ring on this for some time in that early on, a lot of people said maybe its not good idea to blog and say were not serious about your Academic Work if youre spending your time blogging. Why is any work to spend your free time blogging than going out fishing. When youre blogging, people can see youre doing it. Whether you go out fishing, unless you have to be at that particular stream [laughter] people, even though theres a debate going on about whether blogging itself can be counted as scholarship are not. You can argue about whether km. Most blogging is not scholarship. Even like myself, we dont believe its a sensitive for scholarship. It shows your arms seriousness if youre an academic because they recognize it is influencing public debate. There are prominent leftwing academics, resorted to on the other side of the debate during the ac litigation. Over time and it will happen even more in the future, legal academics and other academics recognize blogging is akin to other public intellectual activity that academics legitimately engage in such as writing off bad. They apply in many ways better because youre not so tightly constrained by where accounts in the foreign senator constrained that newspapers have, whereas the blogosphere is much more flexible and can have been much more quick reading efficiently. The master of the threepart blog post. Theres a really important point to make on the subject. The reason by the blockade was not effective as it was then white such a great vote is because we are all scholars blocking first spirit that is we drew upon our scholarship and knowledge to make the more paid the shirt on arguments that were making on the blog has to our adversaries on balkanization. One juxtaposition is oren was not so much a scholar as i had been and others of us had had. He was kind of the protagonists, raising questions about what about this and what about that . The scholar of the fourth amendment. I raise questions about the constitutionality is of the nsa. I certainly know the difference between being a scholar and not one. It would be a big mistake in our business is somehow her colleagues were to think blogging as scholarship. Blogging is not scholarship and could be legal theory blog. That almost amounts to scholarship. We are utilizing the knowledge and expertise we have developed general scholarship and way of putting it to use. But blogging does allow us to do is learn how to write better. We might have written in the long for my review articles. I couldnt get an oped place until i started talking in this inverted way that not appeal to newspaper audiences. What they started blogging, i got a different voice and was able to publish updates. It does enable us to reach a larger audience if we develop the voice that allows us to do that. I agree with everything randy jay said. I think blogging is a somewhat unusual name for academics to do and this in some way surprising that for the clueless blogs are having in the profile given the leadership, it is still a pretty small number of academics doing it on a break of their basis. Theres a decent percentage that have their name on a blog somewhere and want to hear my face and then. The number of people doing this at a rate to their basis is still really quite low. Given the hierarchy, all things blogging really establish a part of the legal academia and the professors at harvard to naturally start blogging. Last question for this gentleman over here. Well, much of the conversation is then about please say who you are. I am chris conlon. There was also some about medicaid and power of the states. But there was another issue that kind of came out. Direct tax versus direct tax. Of course robert interested so much in its decision. But it is based off of an article in tax notes, which argued it is a direct tax and therefore unconstitutional. If you guys look into that issue anymore and you think you should have raised that issue more with the course . Maybe that would have been [inaudible] good question. We did deal with the issue briefly. We been given wide attention and so we didnt think it was a major issue. [inaudible] so we did we say. Heres the thing you have to keep in mind. The chief justice was highly cursory and part of the reason there was no oral argument. There was the adversarial briefing on the issue. You should be making on important legal question about the adversary system so you have good arguments on both sides in any tasty arcaro arguments. It was a side issue that was never really pays. Its another reason why the chief Justice Davis a mistake. It was complained about by the dissenters on that issue and the fact he raises the issue without full attention to it. Maybe padlock to the extent is one opinion law. Whether youre a prosecutor and criminal court were here doing constitutional educations come you cannot make a judge ruled the way the judge does not want to rule by arguing against that. If a judge wants to reach a certain conclusion. They can rely upon the conclusion. Theres not a matter if we just made this one argument. He was bound and d