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