April 14, 2014 | Volume XXI, Issue 14

Dunwody lecturer discusses victories and losses in the Affordable Care Act

Published: April 1st, 2013

Category: Feature

3_22 Haley Stracher (b)

Georgetown Law Professor Randy Barnett discusses the Affordable Care Act at the 32nd annual Dunwody Distinguished Lecture in Law on March 22. (Photo by Haley Stracher)

By Matt Walker

Although the Supreme Court did not reach the overall decision on the Affordable Care Act that he would have liked, Georgetown Law Professor Randy Barnett said victory was achieved “by the constitutional theories we prevented from being adopted by the Supreme Court.”

Barnett, who represented the National Federation of Independent Business in its case against the Affordable Care Act spoke on “Who Won the Obamacare Case (and Why Did So Many Law Professors Miss the Boat)?” at the 32nd annual Dunwody Lecture in Law on March 22.

The Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center said he became involved in the case because of two issues.

“One was saving the country from Obamacare, which I think is disastrous public policy, and we’re all going to have to find out how disastrous it is shortly,” Barnett said. “And the second thing was saving the Constitution for the country.”

He said that although they lost in the first point, he was relieved that they won the second point – five of the justices affirmed his views of the Commerce, and Necessary and Proper clauses.

The clauses, which give Congress the power to regulate commerce and “to make all laws which shall be necessary” to carry out its powers, were upheld when the Affordable Care Act’s individual mandate was struck down by the court, according to Barnett.

He said rather than a mandate requiring individuals to purchase health insurance, individuals will have the option to purchase insurance or pay a tax penalty. Analysts say that people who decline to purchase health insurance will see no difference whether it is called a “mandate” or a “tax.”

Barnett said the ruling makes bad law in two ways, but made constitutional law better in more important ways.

“First (Chief Justice John Roberts) claimed the power to rewrite a law by giving it a saving construction to uphold it even though that construction is not the most natural reading of the statute,” he said. Additionally, “the chief justice allowed that Congress may impose an unprecedented tax on inactivity.”

Barnett said as a result of the ruling, “Congress has the unprecedented and potentially dangerous power to tax inactivity without apportioning the incidence of such tax equally among the states.”

Despite those losses, Barnett emphasized several points on which he said his side was victorious: Denying the government the power to force citizens into economic activity, preventing the Supreme Court from adopting a stance that would give Congress more power to regulate the national economy, and upholding that conditions on federal spending are unconstitutional.

“While our failure to prevent the egregious Affordable Care Act from taking effect remains a bitter disappointment and one I have not gotten over yet, this should not be allowed to detract from all we have accomplished,” Barnett said. “Only time will tell who really won the Obamacare case, but for now the constitutional scheme of limited and enumerated powers lives to fight another day.”

The Florida Law Review Dunwody Distinguished Lecture in Law series was established by the U.S. Sugar Corporation and the law firms of Dunwody, White, & Landon, P.A. and Mershon, Sawyer, Johnston, Dunwody & Cole in honor of Elliot and Atwood Dunwody. The honorees were brothers who dedicated their lives to the legal profession and who set a standard of excellence for The Florida Bar. As graduates of the University of Florida College of Law, they labored long, continuously and quietly to better the social and economic conditions in Florida.

The series is intended to perpetuate the example set by the Dunwody brothers by providing a forum for renowned legal scholars to present novel and challenging ideas.

An archived video of the Dunwody Lecture is available at www.floridalawreview.com.

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