Mandeville, LA - Exclusive Transcript - There were two things on the table in this lawsuit, that Congress put on the table, we didn’t put on the table. One was ObamaCare, which takes over a substantial portion of the American economy, puts government in control of our medical care, and fundamentally changes the relationship of the citizen to the government because they control our medical care. That’s the first key thing that ObamaCare put on the table, was put on the table by Congress. The second thing was, the justification for this was a vast expansion of Congress’ power under the Commerce Clause, which is the power that Congress claimed to be able to enact an individual insurance mandate that funded this whole bill. Check out today's transcript for the rest of Professor Barnett's comments...
Begin Mike Church Show Transcript
Mike: The sun came up, the Gadsden flags are flying and it’s now our turn to act. Speaking of acting, Professor Randy Barnett, Georgetown University, his latest book Restoring the Lost Constitution: The Presumption of Liberty. Professor Barnett, welcome back to the program. How are you today, sir?
Professor Randy Barnett: I’m recovering from yesterday. I think I’m doing much better, actually, Mike.
Mike: For those that don’t know, Professor Barnett had a hand in some of the arguing or some of the presentation of the states’ case against the Affordable Care Act in the courts.
Professor Barnett: Actually, Mike, I represented the National Federation of Independent Business in that lawsuit. We were the private parties associated with the states.
Mike: Okay. I was going to ask you about that, if you’d spoken to anyone at NFIB and what is NFIB’s response. My main question to you was, you told me back in March when I interviewed you about this, I said, “Make a prediction.” You said, “Oh, Mike, I don’t make predictions.” You don’t have to predict anymore. You know what happened. What happened?
Professor Barnett: Well, something happened that was not something any of us expected, either way. There were two things on the table in this lawsuit, that Congress put on the table, we didn’t put on the table. One was ObamaCare, which takes over a substantial portion of the American economy, puts government in control of our medical care, and fundamentally changes the relationship of the citizen to the government because they control our medical care. That’s the first key thing that ObamaCare put on the table, was put on the table by Congress. The second thing was, the justification for this was a vast expansion of Congress’ power under the Commerce Clause, which is the power that Congress claimed to be able to enact an individual insurance mandate that funded this whole bill.
So there were two things at stake in this lawsuit. We had to save the country from ObamaCare and we had to save the Constitution for the country. I always thought that these had to rise and fall together. If we lost on ObamaCare, it would mean that we lost the Constitution. If we won on the Constitution, it would mean we won on ObamaCare. Yesterday, Chief Justice Roberts figured out a way to give us a victory on the Constitution while handing us a stinging defeat on ObamaCare.
If I had to pick which of these two I was going to win in court, I would have picked the one I got. The reason for that is the people, right now, in the middle of an election, have the power to defeat ObamaCare, to win that fight. If we’d have lost the Constitution in the court, it would have taken a generation to try to fix the Constitution. So we saved the Constitution to live to fight another day. Now we have to save the country by defeating ObamaCare, and then secondly, seeing how Chief Justice Roberts switched in this case to let us down on ObamaCare, we have to insist that the next president appoints Constitutional, conservative justices who are vetted so that they have the character that they will not wilt under pressure when the time comes, when the chips are down, to protect us, to use the Constitution to protect the liberty of the people.
Mike: I have to ask, explain to me, I haven’t read the entire ruling. I’ve read parts of it and I’ve read several people’s opinions on it that have read it. How was the Constitution saved by invoking the Good and Plenty Clause?
Professor Barnett: It’s very important that we all understand this. There are many, many commentators today on the right and also on the left, today, who show they understand this. The first important thing is that the Commerce Clause has not only been protected, it has been strengthened. All the arguments we made about why an individual insurance mandate was beyond the commerce power were dismissed by all the experts, all my academic colleagues, as frivolous claims. Every single one of our arguments about the Commerce Clause was adopted by five justices. Every single one of our arguments about the Necessary and Proper Clause was adopted by five justices. Seven justices adopted the view that Congress’ spending power was limited so that they could not coerce the states into accepting Medicaid challenges by withholding all the Medicaid funding the states are now receiving. Those were huge. That’s the good news.
The bad news, you pointed to, and that is to get out from under this, Chief Justice Roberts rewrote the statute to eliminate the mandate and make it an option to buy insurance or pay a fine called a tax. He had to eliminate the mandate. Congress doesn’t have the power to mandate us. The statute reads requirement, so he had to change the statute. Now it has the option, either you do it or you pay a fine. Now, it’s true, I want to say right up front, not to sugarcoat, it’s true that from now on, under this ruling, if this is all we ever know about it, Congress has the power to essentially say if you don’t buy broccoli, you have to pay a tax, a fine. That’s true. It’s bad; it’s new; it’s unprecedented. I don’t like it.
It’s not nearly as dangerous as if they had done this the way the government asked them to and the way the four concurring had them do, using the commerce power. Why is there a difference? Because the only consequence of disobeying that government edict is that you have to pay the tax. If it’s a Commerce Clause regulation, the consequence might be a fine, but in the future it could also be imprisonment. Millions of people are in prison on drug crimes because those drug laws are done under the Commerce Clause, not under the taxing power. They don’t just have to pay a fine, they have to go to jail. That’s a huge difference.
Secondly, and this is another big one, anything that approaches a mandate, anything that approaches a broccoli mandate, is more politically toxic now as a result of our lawsuit and the result of all your efforts, than taxes are. That means, for the foreseeable future, Congress won’t do it. They’ll have the power, but they will not do it. We have the chance, long before any other Congress decides they want to do that, to change the political culture starting in November. We already started in 2010. Let me tell you, Mike, if we don’t change the political culture, broccoli mandates are going to be the least of our worries.
Mike: That’s saying an awful lot. I had a thought when you were talking about the taxing power. Wesley Snipes is in jail for tax avoidance. That’s under the taxing power.
Professor Barnett: That’s if you don’t pay your taxes. All I’m saying is, if you pay the fine, you don’t have to go to jail. Would that that was true with drug laws, with medical marijuana, you just have to pay the fine, but you can still use it. Look, Mike, I’m so glad you invited me on the show this morning, and I’ll tell you why. I told you, you are one of the elite. You know that you are. I’ve always told you you are part of the elite in this country.
Mike: You did.
Professor Burnett: I know that you love it when I call you part of the elite. All that means is you are one of the most intelligent, smart, insightful defenders of the Constitution that are out there, and that’s why people listen to you. We all need you to have your head on straight about this, what happened yesterday. We all need you to keep your cool and to realize that we saved the Constitution for now. Now it’s the people’s opportunity to decide the ObamaCare question and to make sure that future justices on the court are not going to flip the way that Chief Justice Roberts flipped on us. That’s a character question. From now on, look at the difference that nomination hearings are going to have. You know it.
Just picture, if the Republicans win the presidency and the Senate, picture what the next hearings are going to look like. They’re not going to be asked about balls and strikes. They’re going to be asked about enumerated powers. They’re going to be asked, “What do you think Congress has the power to do under the Commerce Clause?” That’s what they’re going to be asked. They’re going to be asked that before they’re even nominated so they know what the answers are. That’s what all these hearings are going to be about. That’s going to be a change, a revolution from the way nominees have been chosen in the past, if you, me, and the American people respond the way we have to respond. It’s a Tea Party moment, Mike. The Tea Party has to save the country.
Mike: I say it’s a Patrick Henry moment, but you can say it’s a Tea Party moment. Let’s get into the constitutionality of this. You and I disagree on what I call the Incorporation Doctrine. We have a little bit of a difference of opinion on that. I also would just point out to you, when you say there was a victory because the general government cannot deny funds to the states for Medicaid, and Andrew pointed this out earlier today. I pointed out to him that during the aftermath of the ObamaCare vote, my senator, Senator Landrieu, was accused of getting this thing called the Louisiana Purchase. She got really upset one day because the governor, Bobby Jindal, our governor, was saying she sold the state out and so did Senator Vitter and Representative Scalise and a few others.
She took to the floor of the Senate with a series of charts. She basically filibustered for about six hours. I never thought it would come from Mary Landrieu, but it did. Senator Landrieu presented the case that the State of Louisiana was participating in Medicaid voluntarily. There was no edict. There was no compulsion. She read from the statute. She read from the act back in the 1960’s that made Medicaid. She said, “None of us have to take any of this money. We’re free to reject it tomorrow morning if we want. We choose not to because we get this and that and the other.”
Professor Barnett: Seven justices rejected that proposition this week.
Mike: That a state could reject it?
Professor Barnett: No, that the states were being presented a free choice. Seven justices said no, it’s not a free choice. The fact that you have to give up all the existing funding you get, if you don’t agree to new coverage requirements, is not a free choice. The government made Senator Landrieu’s argument to the Supreme Court and seven justices rejected it this week.
Mike: So the states then are compulsory participants in Medicaid by statute?
Professor Barnett: Well, what they said was the government can’t use the amount of money the states are currently getting to compel them to agree to something more. They have to agree again. They did agree to get into Medicaid in the first place, they did.
Mike: Right, they did.
Professor Barnett: Now they have to agree to expand it, which they were not given a choice to do. Now they have the choice. Whether they do it or not, it’s up to them.
Mike: So let’s revisit. I live in Louisiana, so Governor Jindal, our legislature could convene a special session tomorrow and say, “That mandate is a nonstarter here. Anybody who comes in here and tries to enforce it, we’re going to arrest you and try you and throw you in one of our jails”?
Professor Barnett: No, no. The issue is for the states, whether they have to expand coverage to include new classes of people that are not currently covered, and people who make a lot more money than are currently eligible for Medicaid. That’s what the federal government mandated that the states do, by saying we’re going to take away all of your Medicaid funding if you don’t agree to this. Now, they can agree to that or not agree to that.
The Louisiana citizens’ money that’s already going to the federal government and coming back through the current Medicaid program is not going to be held hostage to this new choice, only the new money is going to be at risk. They’ll have to give up the new money they’re going to get, the Louisiana Purchase money, the extra money they’re going to get, but they can still keep all the money they had and not go along with the new coverage expansion. That’s up to them. That’s what was decided. Seven justices decided that this time. Mike, it’s the first time since the New Deal that the court has invalidated any part of a law on spending power, has found any enforceable limit on the spending power. It just hasn’t happened before.
Mike: So the State of Louisiana then, or State of Texas, State of Maryland, State of Florida, State of Georgia, State of Kentucky, can say, “Okay, we’re not playing your game”?
Professor Barnett: We’re not playing by the new rules.
Mike: So they can nullify then. So they just basically sanctioned nullification, if I’m understanding you?
Professor Barnett: It’s voluntary, yes. Congress, under the spending power, does not have the power to compel the states to do so. That was decided. The fact that Congress can now commandeer states was affirmed by the court in the 1990’s, in the Rehnquist Court. What we were arguing is that the threat to withhold money amounted to compulsion, which is something that is unconstitutional, and the court agreed. It did. Now, they have to choose it. They can do it, but they have to choose it. It’s not nullifying; it’s contract. They have to choose it. They chose it before. They got into Medicaid and they didn’t know what they were getting into. It turned out to be a pretty bad system, which they have a hard time getting out of because it’s so huge. That’s bad and we didn’t fix that. We did fix the ability of Congress to leverage everything the states now get into making them do more. Now the states get another choice. That happened this week.
Mike: Got it. Professor Barnett, Restoring the Lost Constitution: The Presumption of Liberty. Next time we have you back, and it will be soon because I want to get back to this after the election, we need to get back to that whole Article 5 amendment convention if there is any hope of restoring the rest of what has been lost. I want to talk to you about that.
Professor Barnett: First thing is first. This election is it. This is it. If there’s more of this administration, then you can forget about it. The good news is, I think the pieces are in place to make this election mean what we both hope it will mean.
Mike: Professor Barnett, thank you very much, my friend.
Professor Burnett: Thanks, Mike.
End Mike Church Show Transcript