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 nationalization of 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.

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