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Interview: Randy Barnett on ObamaCare

Randy E. Barnett

Law professor Randy Barnett, who has argued before the Supreme Court, is described by Forbes as the legal scholar “who laid the intellectual groundwork for the surprisingly effective legal attacks on ObamaCare by state attorneys general.” Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches contracts and Constitutional law, has also taught torts, criminal law, evidence, agency and partnership, and jurisprudence. He graduated from Northwestern University and Harvard Law School, tried felony cases as a prosecutor in the Cook County States’ Attorney’s Office in Chicago and, in 2008, he was awarded a Guggenheim Fellowship in Constitutional Studies. Professor Barnett, who lectures internationally and has appeared on the CBS Evening News, The News Hour (PBS), and National Public Radio, offered his thoughts on America’s sweeping new socialized medicine—ObamaCare—during a recent interview.

Scott Holleran: In terms of American law, is health care a right?

Randy Barnett: Health care is not a Constitutional right. There are a lot of spending programs that create various entitlements, such as Medicare, but these are statutory rights not fundamental or Constitutional rights.

Scott Holleran: Is ObamaCare Constitutional?

Randy Barnett: ObamaCare, or the Patient Protection and Affordable Care Act, is unconstitutional for at least two reasons. One is that the individual mandate requires every American to purchase [health] insurance or face a penalty, which is an extension of Congressional power that goes beyond anything that has previously been authorized by the Supreme Court. From its inception, the substantial effects doctrine, though commonly conceived as a Commerce Clause doctrine, has been grounded in the Necessary and Proper Clause. The Supreme Court developed a judicially administrable test for whether it is “necessary” for Congress to reach intrastate activity that substantially affects interstate commerce: the distinction between economic and non-economic intrastate activity. Because [ObamaCare’s] individual mandate [forcing people to “buy” health insurance] fails to satisfy the requirements of this test, it exceeds the power granted to Congress by the Commerce and Necessary and Proper Clauses as currently construed by the Supreme Court. The Supreme Court has said that Congress could not reach non-economic activity and Congress, in this case, is trying to reach non-economic activity, mandating that people engage in economic activity. The other problem is that, as certain states are contesting, Congress is using its spending power coercively.

Scott Holleran: Is ObamaCare legally inevitable?

Randy Barnett: Absolutely not—it is not inevitable that legal challenges will fail or succeed. Neither side has an argument that can dictate or mandate or require the Supreme Court to decide this issue for or against their side.

Scott Holleran: Is the Constitutional case against ObamaCare an originalist perspective?

Randy Barnett: I am an originalist who advocates interpreting the Constitution according to its original meaning, but nothing in the legal challenge to ObamaCare is based on the original meaning of the Constitution—we’re just following the opinions on the Supreme Court, applying what they have previously said to this statute. I would describe our arguments as doctrinal, not originalist.

Scott Holleran: What are the legal options for opposing ObamaCare?

Randy Barnett: There are more lawsuits than I can keep track of, but, of the five district court judges who have ruled on the Constitutionality of the law, two struck it down and all five are on appeal, and we’ve so far had three appellate arguments, in Richmond, Cincinnati, and Atlanta, involving four of the lower court decisions. There may be other options that arise but I don’t want to express an opinion at this point and I don’t want to be overly optimistic. We expect decisions in the cases that have already been argued by the end of the summer, or possibly by September [2011] and, if the Supreme Court takes a petition for appeal, there could be a decision by June 2012. That would be the earliest. I have a high opinion of the lawyers in the Virginia case, and the lawyering in the 11th Circuit Court of Appeals was excellent.

Scott Holleran: Have you read Virginia Attorney General Ken Cuccinelli’s address to Hillsdale College arguing against ObamaCare?

Randy Barnett: I have not seen that speech but I’ve testified to Congress with him. This guy is smart but what really amazed me was his press conference in Richmond. He was amazing—he got up there and gave one of the most knowledgeable, careful, legal analyses of his case [against ObamaCare] and he was crystal clear and completely on top of the case. I thought it was a masterful performance. I was really, really impressed.

Scott Holleran: What are the legislative options for opposing ObamaCare?

Randy Barnett: It would be helpful if the Republicans in Congress would pass a law that is Constitutional and market-based—I don’t think anybody wants to go back to [the mixed health care system of] 2008—and I have discussed this with several people and I get the sense that there is interest. If the GOP were to pass the [Rep. Paul] Ryan plan, it would be very beneficial [to killing ObamaCare] because it would show that there are alternatives [to ObamaCare]. It would offer something identifiable as an alternative—not just a think tank proposal—something worked out of a legislative body and that would be important. Ultimately, the people will have to elect a president who will sign a repeal bill and, if the court upholds the [ObamaCare] law, that will fuel the fires. I think any Republican who gets the nomination will have to pledge to repeal ObamaCare. I do think it’s going to be a challenge for people on the Hill to come up with something that’s not ObamaCare-lite because that’s the way they think. But the need for health care for poor people does not deprive other people of the right to choose their health care. A government takeover and distortion of the health care market is not the way to go.

Scott Holleran: Are there executive options for opposing ObamaCare, in case Congress buckles in favor of the law?

Randy Barnett: [Former Massachusetts] Governor [Mitt] Romney says he’ll give a waiver to everyone. But I’m a Constitutional lawyer and, when you’re talking about something so far down the road, a lot can happen.

Scott Holleran: Are there state law options for opposing ObamaCare?

Randy Barnett: Some states have enacted health care freedom [from ObamaCare] acts and the Constitutionality of those acts are at issue in the lawsuits. If we lose [and ObamaCare is upheld], those acts will be inoperative. States can try to resist the Medicaid part, if they can afford to—and they generally can’t—but the idea that 27 or 28 state attorneys general are suing is significant and it’s going to be noticed by the Supreme Court.

Scott Holleran: Are there opt-out provisions that a single individual can exercise in compliance with U.S. law to get out of ObamaCare?

Randy Barnett: I don’t want to comment on that.

Monroe Anderson on Leanita McClain

Leanita McClain with Monroe AndersonJournalist, former Chicago Sun-Times columnist, Chicago television executive and host and blogger Monroe Anderson recently talked with me about the 1984 suicide of his friend and colleague, Leanita McClain. He wrote a column about losing her in 2009.

Scott Holleran: How did you meet Leanita McClain?

Monroe Anderson: I was still working for Ebony and living in Prairie Shores at 28th and South King Drive by Michael Reese [Hospital] and it was a very black middle class apartment complex that [Ebony/Jet publisher and businessman] John Johnson had a stake in. I had moved to Chicago in 1972 to work for Ebony. We had a meeting in my apartment to talk about organizing black journalists, which eventually became the Chicago Association of Black Journalists. I was married to Christine Harris, my college sweetheart at Indiana University. Leanita was a student who struck me as very quiet, very poised. She was attractive. I remember her not saying anything.

SH: Where did you live in 1984?

MA: In Lincoln Park.

SH: Where do you live now?

MA: Lincoln Park.

SH: Did you feel guilty about moving to a predominantly white neighborhood?

MA: No, no, no, though there have been attempts to make me feel guilty. I looked in Hyde Park and the DePaul [University] area and I couldn’t afford it. I didn’t move here to live with whites but because I didn’t know how long I’d be in Chicago and I wanted to make a profit and gain [property] value.

SH: Leanita McClain was a friend and colleague and you both split from your spouses around the same time. Following your divorces, did she confide in you about her mental state?

MA: Yes. Leanita had talked with me about her attempt at suicide, and how her stomach had been pumped. This was my first and only [experience with] suicide. She was talking about suicide, like a kind of banter back and forth, and I did not take it seriously until she attempted it. Then, instead of banter, I lectured her about it. I talked her into going to therapy. In retrospect, I know that she wasn’t honest with me. She had reached out to me first—she felt I was safe. She came and told me about leaving Clarence [Page] to find herself, which is what my wife had left me to do.

She knew I wanted to write opinion pieces and she encouraged me. I would talk to her about them. Because I had grown up in a segregated community, I had not known any white people until I went to college. So I felt comfortable talking about my ideas with her. Leanita became my go-between.

SH: Was Leanita friends with other black Chicago journalists, such as Vernon Jarrett, Bob Petty, Rosemarie Gulley, and Harry Porterfield?

MA: She was friends with all of them. Vernon was her mentor.

SH: Was she political?

MA: No.

SH: Did she think Harold Washington was a type of great black hope when he ran for mayor of Chicago and did she have unrealistic expectations about his candidacy that were dashed?

MA: It was the idea of Harold Washington—and he was a charming communicator—and, when she was forced to face reality, it was too personal. All those Democrats [who refused to support Washington’s candidacy] became Republicans overnight. From her perspective, when he met all the benchmarks that should have allowed him to be mayor and wasn’t supported, it was a rejection of her.

SH: She wrote of being her brother’s keeper. Did Leanita McClain consider serving her race as a moral obligation?

MA: No. It was because of the history of racism in this country. I know that when I went to Indiana University in 1965, in this lilywhite environment, I felt that I, too, carried the weight of my race on my back. These things are rarely discussed openly.

SH: Is there anything you would have done differently about Leanita McClain?

MA: No. Because there’s nothing I could do. We talked literally every day, like Gayle [King] and Oprah [Winfrey], and the weekend before Memorial Day, she had avoided me. I didn’t make too much of it but then I didn’t talk to her that Friday, or Saturday, or Sunday, so on that Monday I called her, because she hadn’t called me. There was no answer. I came in Tuesday morning and her office was dark and the newspapers were stacked up in front of her door. That’s when I called a friend who knew her real estate agent—she was selling her house—who had a key. They went over and found her. He called me and said ‘she’s gone’. I had just come out of a divorce and I had just lost my father, who had a heart attack, and her suicide was part of a maturing process for me. I had done everything to save my marriage and I realized that, sometimes, there’s nothing you can do. It’s gonna be what it’s gonna be. I think she was just crazy. I would tell her that too. She would say ‘I’m not happy’. She just didn’t get the mental health help she needed. Not a week went by when she didn’t talk about suicide. Her mother was an albino and she didn’t talk about—she talked about being poor but not about her mom being an albino.

SH: Have you spoken with Keenan Michael Coleman, whom she was reportedly dating prior to her suicide?

MA: No. I had met him while she was dating him.

SH: Did Leanita McClain pull a gun on him after they split?

MA: Yes. She shot at him. She called me and I went and got the gun. She didn’t shoot to hit him; she shot to scare him. She was hysterical. I got a call from her saying ‘I shot at him! There’s a big hole in my wall and he left and he’s gone!’ I got in my car and drove there and she was crying, tears running down her face, and she showed me the gun, and the hole in the wall—and her concern was that she would never see him again. I was not gonna leave that gun there—I calmed her down, and I took it home and, since I didn’t want a gun in the house, I called Clarence [Page] and told him to take it. I later went to see her and she wasn’t frantic anymore.

SH: What advice do you have for those who have been affected by suicide?

MA: There’s nothing you can do about it. Don’t encourage it—but when they do it, they do it. A friend of mine here in Chicago, who moved to L.A., has written this book about his son’s mental illness and suicide called The Dragon and the Angel. If someone wants to end their life, there’s nothing you can do to stop them.

SH: A Chicago Tribune reporter was quoted in her obituary as saying that Leanita McClain carried the weight of the city upon her shoulders. Should she have shrugged?

MA: Yes.

Clarence Page on Leanita McClain

Clarence PageI met Pulitzer Prize-winning Chicago Tribune columnist Clarence Page while he was on a book tour in Los Angeles and I scheduled him for an interview on The Leonard Peikoff Show at KIEV. I remember the interview as lively and interesting, and we reconnected years later through social media. This is an edited transcript of our recent conversation about the suicide of his former wife, Leanita McClain.

Scott Holleran: You were married to Leanita McClain for several years before you divorced. How did you meet?

Clarence Page: I was working in the [Chicago] Tribune newsroom—it was about 1972, because she was four years younger—and I looked up and she was the new intern hired from Northwestern [University in Evanston] and she was fresh off the campus. She was about 22. I was fresh out of the Army. I was about 26.

As soon as I met her I wanted to go out with her but I didn’t want to be too forward. I had two tickets to see Westworld and I asked her to attend the screening. We dated rather steadily and it was a slow build. We moved in together into an apartment between Lincoln Park and Lakeview, a one-bedroom apartment off Broadway on Wrightwood, just south of Diversey. We lived there and, after we moved in, we were married in six months—I was an only child and she was [the youngest of three children] and I wasn’t that eager to jump the broom. One day, my mom called and Leanita was there and answered the phone. She felt so guilty and nervous and she said ‘can we please get married?’ We went to City Hall and later we moved into the condominium on Lake Shore Drive off Belmont Harbor. It was in 1980 that she wrote the Newsweek piece [“The Middle-Class Black’s Burden”] and I left the Trib and went to [Chicago CBS affiliate] WBBM-TV.

On Memorial Day in 1980, our four-year-old nephew died in a tragic accident. After that, things took a bad turn. We could hardly see a four-year-old without her breaking down. It was a rollercoaster. She was the one who wanted to leave. She said she needed to be alone. I took it personally and figured that she just got tired of me. Then, one day she called me and said she had cut her wrists and had taken pills. I rushed her over to St. Joseph’s Hospital. I talked her into moving back in and she did—but she moved out again within a week. She bought a house in Hyde Park, with the primary motive to get married and have kids; then she backed out and went ahead and bought it anyway—she was digging a hole and feeling that she deserved this feeling. At one point, she fainted during a TV show taping. I picked her up and took her to her home and her refrigerator was empty.

Psychologically, you could see that Lea’s problem was race. Now we know that she was clinically depressed and what we would now call bipolar.

SH: What was she like as a journalist?

CP: She liked the copy desk best and she was happiest there. She didn’t like people that much—she didn’t like strangers and getting into people’s business, so she was not one who had dreamed of being a reporter her whole life. She had wanted to be a teacher like her sisters. A teacher at Chicago State [where Lea had attended college] had told her that she was an excellent writer and thought she could get a scholarship to Northwestern. They sent her a $6,000 check for her tuition to the housing project. Her father, who was a factory floor janitor, sat there staring at it because it was more than he made in a whole year.

But she never had a fire in her belly. One of her assignments was to cover the circus and Leanita was assigned to write a feature story, so she had to ride an elephant. She was scared of the elephant, riding down State Street, and the photographer kept telling her to smile and she came back and wrote that she had hated the experience—but her editor made her rewrite it. She was talented enough to write a piece of fiction. And that was one of my early indications that she was not in sync with the newsroom.

SH: How was her My Turn column in Newsweek received?

CP: Black folks loved it—conservatives hated it. But everyone thought it was moving. This piece was more like the agony of the black middle class. She was saying what [certain] black intellectuals had been saying about the terrible twoness of being African and being American and Leanita changed the metaphysics to having a foot in each world and not feeling comfortable in either. She was the only one writing about the paradox.

SH: What advice do you have for those who have been affected by suicide?

CP: The first thing is that it’s like Alzheimer’s—which my dad had and just died from—in that it’s harder on the survivor, so you need to not be ashamed to get counseling and get through it. Be aware of the danger signs and don’t be in denial. Get help. They usually try at least twice before and Leanita fit right into that pattern. Don’t hesitate to get them into counseling and if the person still commits suicide, don’t feel guilty. There’s more open discussion now and there’s a general understanding to get out of the superstition stage and start to deal with these [depressant] emotions.

SH: What advice do you have for those who may have thoughts of suicide?

CP: Like the campaign to help gay teens says, it gets better. A disparate number [of suicides] are gay kids or they are carrying a cloud of depression—my wife, who teaches at George Washington University—has been concerned about certain students. Since [the suicidal murders at] Virginia Tech, there’s more awareness. When I think of Leanita, she wasn’t the only tragic case in journalism. One of the Trib’s Pulitzer Prize-winners, George Bliss, had a nervous breakdown. He went away, came back and sat there, spaced out, and apparently he had a problem grasping reality. Then, he shot his wife and shot himself. That affected Leanita deeply.

SH: In her suicide note, Leanita McClain asked you to handle the arrangements. How did you cope and what pulled you through?

CP: At the time, I felt sad and remorseful and guilty but I also didn’t feel alone—I had her family and a circle of friends and it helped that I was being interviewed all the time.

SH: Do you think you suffered a type of post-traumatic stress disorder (PTSD)?

CP: Yes, I suppose so. I’m an Army veteran, though in a way it was like ‘ignorance is bliss’. When [she] finally did [kill herself], I was shocked but not surprised. It was therapeutic for me to help her friends and family. And I learned a lot about the media. It made me a more responsible reporter.

SH: One Tribune reporter was quoted in her obituary as saying that Leanita McClain carried the weight of the city upon her shoulders. Should she have shrugged?

CP: I think so. She was emblematic of Chicago and a racial and political mood of the city at that time, which she filtered through her own personal troubles.

Interview: Composer Desplat on The King’s Speech

The King's Speech soundtrackToday, I had the pleasure of speaking with one of my favorite movie composers, Alexandre Desplat, about 2010′s best movie, The King’s Speech. We discussed several of his scores for some of the most well-made motion pictures of the last ten years, including The Queen, Casanova, and The Curious Case of Benjamin Button. He is bright, thoughtful, and very focused and, in a tender moment, he disclosed the recent loss of his father, which I thought he handled remarkably well. Here is this morning’s interview, which I must say I enjoyed almost as much as the movie and Desplat’s music, which I thoroughly recommend as his best work yet. Click on the soundtrack image in the interview to buy the compact disc and enjoy reading.

Dr. Dean Edell Retires

Dr. Dean Edell, whom I met and interviewed in 2001, recently announced that he has retired from talk radio. His voice of reason, which generally favored facts, science and free choice in medicine, will be seriously missed. Read my interview with Dr. Dean about his book Eat, Drink and Be Merry and his thoughts on health and medicine here on the site or, read the interview as it appeared here, in the nation’s first newspaper, the Hartford Courant. I wish him all the best and hope he continues to speak out for rational science and medicine.