Randy Barnett Says This; John Yoo Says That

Philip Klein at the Washington Examiner interviewed Randy Barnett, "the legal architect behind challenges to the health care law." Barnett says that Congress is unlikely to use the expanded power and that it's lame; it's too flimsy to survive. He points out that a future (conservative) court could use the "built-in tripwires" to fix the expanded tax power.

He continued, “This is big. And it’s only the stinging disappointment of not being able to take down Obamacare that conceals how big this was. Every one of our arguments got accepted by five justices. Every one.”

. . .

Barnett criticized Roberts’ reasoning in upholding the mandate on taxing grounds, but said it was too flimsy to survive as constitutional doctrine.

“It’s lame,” he said. “The reasoning is transparently lame, and that doesn’t hurt, that helps. Transparently lame reasoning doesn’t stand the test of time. What will stand the test of time is everything he had to say about the Commerce Clause and Necessary and Proper Clause, because that was hard-edged. And that had five votes in support of it.”

. . .

“That is an expansion of the use of the tax power beyond where it’s gone before,” Barnett said. “(Roberts) claimed it wasn’t, that’s lame too. It’s an expansion. It’s just an expansion that Congress will not make use of in the near future and a future court can fix and so what’s necessary now is political action to ensure that that’s not a problem.”

He explained, “If we do change the legal culture, even in the slightest, and we do get new justices on the Court, they are not going to have any problem with this precedent on the tax power. It was lame, it was (Roberts’) own opinion, it built in trip wires that could easily be used in the future by a court that cared.

John Yoo at the Wall Street Journal writes about Chief Justice Roberts "and his apologists." Yoo says no federal law is put in jeopardy by this ruling and that it puts in place a road map for the next great federal expansion. He also points out that a future liberal court would simply ignore Roberts' Commerce Clause ruling.

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero. Some hope Sebelius covertly represents a "substantial victory," in the words of conservative columnist George Will.

. . .

The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program's expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.

. . .

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius's limits on the Commerce Clause and expand the taxing power even further.

Much more at both links.

I think the difference here is that Barnett is arguing best case scenario. He relies a little too much on hope. Too much "if." Too much belief Congress will view the expanded tax power as radioactive. I'm not so sure they will. And when Congress uses the expanded tax power, it'll be small. Just a little here and there. That's all. Hey, no worries, taxpayer. Trust us. But, of course, that will grow and never go away.

Yoo is more practical. Roberts sacrificed too much for political reasons, "a little peace and quiet from attacks during a presidential election year." And I would add cocktail party reasons. Because what can be better than having Laurence Tribe slap you on the back and bathe you in warm admiration in front of everyone at the backyard party just before offering you a second helping of his famous grilled herbed bell peppers?

Both opinions rely on the future composition of the court, and Yoo points out the necessity for the next president to be very careful. Hopefully Mitt Romney has an adviser who sees the importance of avoiding another moderate. Now there has to be another constitutional conservative.

Like I said, too much "if."

Follow me on Twitter.

posted by rdbrewer at 06:16 PM

| Access Comments