Unprecedented: The Constitutional Challenge to Obamacare
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Welcome to the Cato Institute, to an unprecedented book forum. My name's Ilya Shapiro. I'm a senior fellow in constitutional studies and editor-in-chief of the Cato Supreme Court Review, the latest volume of which we're releasing this coming Tuesday at our annual Constitution Day conference that I hope you will all attend as well.

Today, however, you're in for a different kind of treat. My good friend and sometime co-author Josh Blackman has written what will surely be considered the definitive account of a once-in-a-lifetime case, the constitutional challenge to Obamacare. Not the definitive academic treatment on the Supreme Court's ruling, let alone its implications for health care policy, but the inside story of

of a legal and political tug of war that embroiled all three branches of government. The book, which the Wall Street Journal called "excellent," offers unrivaled access to the key decision makers based on interviews with more than 100 people who lived the journey. Academics, attorneys, activists,

Now, 14 months have passed since Chief Justice John Roberts made Obamacare's individual mandate a tax. I was in the courtroom that fateful June day, and my emotions quickly cycled through shock, denial, anger, and later depression before settling into the bargaining stage of grieving. Still not over it.

To be sure, as I'm sure Randy will discuss, the decision was a constitutional win in at least four ways. It's now clear that the government can't compel activity in order to regulate it,

legislation that's necessary may still be improper and therefore unconstitutional. The narrow tax power ruling allows the government only to levy small taxes on non-purchases, but Congress probably won't ever use this power because it can achieve the same economic goal by offering politically easier tax credits. And for the first time, the court, by a 7-2 vote, found that the federal government can't coerce the states by attaching too many strings on federal funding.

Still, by letting Obamacare survive in such a dubious manner, I call it a unicorn tax, a creature of no known constitutional providence that will never be seen again, Roberts undermined the trust people have that courts are impartial

rather than political actors. I never thought I could feel so empty, and still do, after having court majorities offer such ringing endorsements of my theories, and not mine alone, on the commerce necessary and proper and spending clauses. What bothers me isn't that Roberts changed his vote. Judges do that regularly.

but instead that his tax section simply doesn't compute. Even Justice Ruth Bader Ginsburg, who expressed skepticism about the taxing power justification during oral argument, was quizzical about Roberts' theory when she read a summary of her partial dissent from the bench.

The regrettable inference to draw is that Roberts decided that he needed to uphold the law while not expanding federal power, and he succeeded in squaring that circle with a ruling hinging on a head-scratching tax on inactivity, a piece of legislation no Congress would have passed. The sad thing about this episode is that the chief didn't have to do what he did to save the court.

For one thing, Obamacare has always been unpopular, particularly the individual mandate, which even a majority of Democrats in a national poll on the eve of the ruling thought was unconstitutional. For another, he only damaged his own reputation by making this move after warnings from pundits and politicians that striking down the law would be conservative judicial activism.

Most importantly, the whole reason we care about the court's independence is so it can make the tough calls while letting the political chips fall where they may. Had the court struck down Obamacare, it would have been just the sort of thing for which the court needs all that accrued respect and gravitas. Instead, we have a strategic decision dressed up in legal robes.

I'm reminded of the 1966 film, A Man for All Seasons, in which ambitious young lawyer Richard Rich purges himself so that the Crown can secure Sir Thomas More's treason conviction. Rich is then promoted to Attorney General of Wales. Upon learning of Rich's connivance, More plaintively asks, why Richard? It profits a man nothing to give his soul for the whole world, but for Wales.

Well, in refraining from making that hard balls and strikes call he discussed at his confirmation hearing, John Roberts sold out the law for less than Wales, thereby showing why we don't want our judges playing politics.

Here to tell us all about this sordid tale is Josh Blackman, an assistant professor of law at the South Texas College of Law, who specializes in constitutional law, the Supreme Court, and the intersection of law and technology. Josh is the president of the Harlan Institute, on whose board I sit, the founder of FantasySkotas.net, so if you're not into fantasy football, go check that out,

And he also blogs at joshblackman.com. Josh clerked for Judge Danny Boggs of the Sixth Circuit, Judge Kim Gibson on the U.S. District Court for the Western District of Pennsylvania, and he's a graduate of George Mason University Law School. As Josh said, I'm still not over NFIB v. Sebelius, and the economy and the health care system may never recover. But here's Josh Blackman with at least some therapy. Thank you.

Hi, everyone. You might not know this, but there's an emergency constitution at the podium. In case of emergency, break glass. This is here in case we need to read from it.

It is such an honor for me to be here. It's hard to actually convey. My first time in the F.A. Hayek Auditorium was exactly six years ago for Constitution Day 2007. This was actually Ilya's first week on the job. And I got to know Ilya shortly thereafter. He's proven a great friend and an advocate of liberty. He has given over 100 talks across the country. What's the number now?

I've lost count. Over 200 talks across the country arguing that Obamacare must stop, even after the courts have held, he's still arguing against it. Well, nobody understands the decision, so. I don't understand it. And so Ilya is a great friend. I'm also joined by two wonderful friends. Randy, who's been a mentor and a guide to me. The work he has done on this case is very hard to characterize. He wasn't just the law professor who had these intellectual ideas. He was the godfather.

He was the person who helped move this idea, what we say, from off the wall to on the wall. He gave the idea energy, and he dedicated so much for himself. And Jeff Rosen, we're honored. He's one of the key thinkers in the court and the Constitution. And I might add, his insights in the Chief Justice proved to be exactly head on. In the battle of the Jeffs, Jeff Toobin versus Jeff Rosen,

Excellent. Victor here. Thank you for that. That means a lot, Josh. Thank you. No, they get confused. Actually, Osoman's not here. We have one Ilya. So actually, we're safe. So this case is called unprecedented, and I will use this as a prop. The title actually comes from the law itself. Why is this law so unprecedented? Well, there are a number of firsts. One first, never before in the 20th century has Congress tried to pass a law of such significance in a straight party-line vote.

The president made the determination that he did not need any Republican support to pass this law, just get the vote, so we're done with it. We saw later that that would not be the case, because you need other support when the law is implemented, but this was a straight party line vote. It was also unprecedented. Never before had Congress forced people to buy a commercial product. There have been some laws about making people in the militia get rifles and things like that, but this was a unique law that forced people to do something.

And never before has a constitutional argument developed so quickly, so rapidly, with so much significance, and spread all the way to the Supreme Court in less than two years. My good friend Randy is one of the key progenitors, and also Ilya as well. They dedicated their lives tirelessly to spreading this argument. But it's remarkable to look back.

And actually the title for the book came from an offhand quip I made. So Randy took to using the word unprecedented very often. He said, this law is unprecedented, it's unprecedented, unprecedented. And I made a joke saying we should have a Randy Barnett drinking game, where every time we say unprecedented, we take a shot. And it stuck. Which is ironic because Josh doesn't drink. I don't even drink. I drink, I have water. That's about it. But Randy said that that was one of the moments where it crystallized in his mind that this had salience.

The idea that this law, which forces people to do something, triggered something in the American populace. Because this case wasn't just about the pure Constitution, not just this fine bound volume. It's also about the people.

The people in various social movements, such as the Tea Party and other groups, had an aversion to this law. And it wasn't just on policy grounds. They weren't just saying, we don't like this because we think it's going to destroy our economy. They said, we don't like this because it violates the Constitution. We actually had people protesting not too far from here with signs saying, overturn Rickard v. Filburn, with signs saying, we need to enforce the Constitution. This law unintentionally engendered such a strong constitutional response, a backlash even, that I don't think anyone anticipated.

And this law also serves, I think, as a litmus test for where the American people are with respect to the Constitution. Now, that's all kind of the highfalutin ideas. But the actual story of this case is fascinating. And I will run through it abbreviated to make sure we have enough time for our distinguished co-panelists to speak. The idea of the mandate is actually quite old.

our good friends at Heritage Act proposed in the late '80s. And some of you might recall that in 1993, Ed Crane, former president of Cato, sent a letter to Ed Fulmer saying, hey, this thing's unconstitutional. It was actually an event where Stuart Butler, who invented the mandate, didn't come. And Ed Crane joked, I guess we couldn't mandate him to come.

So the history of this goes back quite a long way. And for many years, Republicans actually supported the idea of a mandate. They said, we think this is a good free market alternative. But Cato for many years said, no, this is not free market. It's coercion. Fast forward to 2009, after President Obama was elected, he basically co-opted Hillary Clinton's health care plan. This was her idea. Made it his own. And he said, we will have Obamacare. We will have a mandate.

We are going to force people to buy health insurance. Why? Well, it's not fair that all these young and healthy people are free riding on the system, that they can wait to buy health care until they're sick and, you know, they're not going to pay into the system. So they had this law called Obamacare. The problem was it was unconstitutional. I'm sorry. It wasn't it wasn't constitutional, but it was unpopular, very unpopular, so unpopular that not a single Republican supported it. Not one.

So the president made a call. He said, you know what? We'll go straight 60 votes. We will just pass it through on party lines. Whatever happens later, we don't care, like Syria. So this happened. You can sense a pattern. This was early on. So you can sense a pattern. But something happened. Senator Ted Kennedy died. He was the 60th vote in the Senate. And after Ted Kennedy died, he replaced him.

A Republican in Massachusetts, imagine that, Scott Brown. Scott Brown replaced Ted Kennedy. And with that, the Democrats lost their filibuster-proof majority. Okay, so what happens now? They don't have a majority. They send it to the House. Nancy Pelosi had to effectively pass the bill from the Senate. But she wanted to make some changes, and not just some changes, a lot of changes. But if she were to make any changes, as our separation of powers works, we'd have to go back to the Senate.

But the Democrats were afraid once they send it back to the Senate, it will be shut down by a filibuster. So the House did these shenanigans. I won't get into it. But they had this reconciliation process where they changed the law. They basically rewrote a lot of parts. And they passed it on a straight party line vote. In fact, about 34 Republicans crossed the aisle to vote against Obamacare. I'm sorry, 34 Democrats voted against Obamacare, which was remarkable.

It was only the most of a few pro-life Democrats like Bart Zupak and others who got the law through. But the president was ebullient. He was so happy. He signed the law. He had this gorgeous signing statement. And he's like, you know, this is the law of the land. And that was March 2010. And as we know... Biden was the one with the signing statement. Oh, he made a statement at the signing. Well, actually, Biden was there. He was grinning. He has a very nice grin. The BFD is the joke I was making. Well, oh, that's right. Everyone know the BFD line? The big effing deal? Yes.

When the law was passed-- actually, the president was watching this on TV, probably CNN. And I'll get back to that later. And the president said, we passed it. And then Biden goes, this is a big effing deal. And this was caught on a live mic.

Anyway, so the law signed, you know, 2010. That's the end of the story, right? Right? No, otherwise my book would be one chapter. So a lot of other stuff happened. Within nine minutes, nine minutes of the ink drying on the president's signature, lawsuits were filed across the country. The

The first one was in Florida, which ultimately united 26 attorneys general fighting against Obamacare. There was another suit filed in Virginia. I think about 10 or 15 minutes later, they had some electronic filing problems led by Attorney General Ken Cuccinelli, who the Wall Street Journal reviewed my book and his in the same blurb, and my book was in front. So we'll see what that counts for.

So these lawsuits were filed. Now back then, if we go back to the fall of 2009, no one thought much of this argument. And I'm sure Randy will talk about an experience we had at the Mayflower Hotel where a simple conversation over what's wrong with this argument developed these constitutional ideals. The idea was in the past, the Supreme Court had only upheld the regulation of classes of activities, growing weed, growing marijuana, et cetera. This was something different.

Congress was not regulating a class of activities. They were regulating inactivity. That is the decision not to have health insurance. And that had never been done before. So these state attorneys general raised these arguments. And remarkably, they worked with Judge Hudson in Virginia and Judge Vinson in Florida. The courts actually gained victories for the challengers. They said never before had Congress done this. It's unconstitutional. Remarkable.

We have federal judges saying that a law that regulates a multi-billion dollar industry does not involve commerce power. This was a stunning blow to the administration. The case went up to the courts of appeals. And remarkably, there were splits. Some judges ruled in favor of the government. And most importantly, the 11th Circuit, the one in Atlanta, Georgia, ruled in favor of the challengers in a very lengthy opinion that was split. They said that Congress lacks this power. They can't do this.

And then the case went to the Supreme Court. This is where it gets fun. Everyone knew where it was headed, but no one knew how it would be resolved. And at the Supreme Court, there were a lot of issues to consider. And I don't want to get too much into the bogging down. But to make this opinion make sense, I need to talk about something called the Tax Anti-Injunction Act. If you need to go to the bathroom or something, probably now is the right time because it's boring. But the Tax Anti-Injunction Act says you can't sue

I'm sorry, you can't challenge a tax until you pay it. The reason why this law exists is people will just stop paying taxes and file lawsuits. The proper procedure is if you don't like a tax, you pay it, and then you go to court and you can sue on it. This has been around for over 100 years. Originally, the government argued that Obamacare was a tax. And because it was a tax that would not be enforced until January 2014, no one could sue on it yet. That argument was rejected out of hand. Why?

Because the actual statute of the text says it's a penalty, not a tax. A penalty. Why does it say that? Because who wants to raise taxes? The president ran on a platform of not raising taxes. The platform was no new taxes unless you're really rich. So they framed it as a penalty. That was a very deliberate move. But the unfortunate consequence of passing law with certain words is that you can't pretend in court that it is a tax. So this argument was rejected out of hand. But as it went to the Supreme Court...

There was a different approach, and this is something I talk about in the book, which many of you even who follow the case might not know much about, is how the Solicitor General decided to frame the issue of the issue of the tax. In the past, they just said, listen, this is a tax. Don't worry about the fact that it's not called a tax. Just pretend it's a tax.

But the Solicitor General had a slightly different argument. He was citing a case called New York versus United States, which was a federalism case which he studied for other principles. But there was one part of the opinion which I had never read before in Justice O'Connor's opinion where she said that if Congress passes a law that's framed as a penalty--

it can be construed as a tax to save its constitutionality, it should be done. Let me say that again. If a law can be viewed as a tax, even though it's not, we will save it. And it was the solicitor general's decision to make this argument, among others, that ultimately persuaded the Chief Justice. The Chief Justice went along with the four dissenting votes who said, listen, Congress can't mandate inactivity. They can't force you to buy a product. But

What the court will say is that if there is a law that could be construed as a tax, we will do so. And that is the horrible saving construction that's kept Ilya awake for most nights of the past 14 months. Are you sleeping now? Are you still having saving construction dreams?

The nightmares. The nightmares. The nightmares. I mean, I actually talk about in the book the dynamics. Because when the Supreme Court's announcing opinion, you don't know in advance what they're going to say. And if you're in the court, you don't have any media. So there was a distinct period inside the court where the people thought the law was going one way. Because the first, I don't know, 12 minutes or so, it looked like this law was going down. It looked like this was going to be struck down. But then the chief judge said, well, but wait a minute.

If we can save it, we will. And I think, Ilya, I think you were pumping your fist, and then you went very sad. The law was saved. But there are some lingering implications of this law that I think we should discuss, which might be of more interest from a policy perspective. One is the politics of this case. The president has made no secret that he likes to go after the court. If you recall the 2010 State of the Union, which was after Citizens United,

He made statements critical of the court. He said that they've reversed 100 years of precedent, that they've opened the floodgates of foreign spending and all these creative horribles. He said this with the justices sitting five feet away. And you remember Justice Alito was shaking his head like, no, not true. The president had repeated this behavior in, I'm sorry, two days after the oral arguments finished, so basically the following Monday. He made these off-the-hand comments where he basically said to the court that you should, quote, exercise your jurisprudence carefully.

he made a very clear message to the court of what he expected them to do. He actually cited the Lochner opinion, which might be a presidential first. I don't know if any presidents ever mentioned Lochner before, and this crowd would probably be a good thing. But David Bernstein's right here. But he actually cited the Lochner opinion, and he made it clear that he was not going to be happy if the court struck this law down. And that might be a good or bad thing, but if you recognize the climate in which this case was decided, this was in a presidential election year,

The case was decided three months before the general election. And the court was rightfully concerned what would happen to it. Now, Jeff Rosen's written about this a lot, and he'll talk more about it later. But I think there was a definite concern on the court, and the chief justice in particular, that for the court to strike this law down in election year, it would open the door for the president to attack the court. And you might say, oh, what's the big deal? The president...

talks about everything. Well, it's a significant deal when we're talking about the court's credibility. If he went so hard after the court for the Citizens United opinion, which might I add, he's benefited from it immensely, right, Ilya? Yeah. The president's benefited immensely from Citizens United, but he attacked the court right there. We can imagine what he would have said had they struck down his signature legislation.

And this had to have weighed in the Chief Justice. Now, I'm not going to get into the rumors of did he or did he not switch his opinion. We'll let-- you know, Jan Crawford will be here next week. No? Anyway, someone else can talk about that. But what we do know is that he was trying to have an influence in the court. I think that that's a very bad precedent. The Chief Justice, Ilya says he sold out. He did. He rewrote a law. He upheld a law that was never passed. But I will give him some credit.

Because as a Chief Justice, he has to think prospectively. He has a 30-year term ahead of him if he stays healthy. The President has, what, three years and counting? I'm sure there's a countdown somewhere in this building. The President has a fairly short time left in office. We have a lot of other cases coming up. Justice passed a term. Voting rights was struck down. Affirmative action is coming up soon. Affirmative, I'm sorry, the affirmative action case this term might be a better test case. So there are a lot of things the court has to do. Let's talk a little bit about Kamala also.

And Randy, I'm sure, will talk about this. But what is the impact of NFIB v. Sebelius on the Constitution? Well, doctrinally, I don't know how big it is. And I'll caveat that. This law definitely said Congress can't regulate inactivity. Now, if Congress has some sort of other purchase mandate, this would probably be there. The Medicaid spending is probably more salient. But I think what this court recognizes is that the federalism revolution, the Roberts-- I'm sorry, the Rehnquist Court is not over.

The court said we are willing to police the bounds from whether Congress can and can't do. We will watch that line, and we will make sure it's enforced. And I think that, in the words of Professor Larry Salem, shifted our constitutional gestalt, the way we look at the Constitution, the way we look at federalism, the way we look at enumerated rights. This notion that the structural protections of our Constitution are important bulwarks of freedom was evident in the court's opinion, both for Roberts and the Joint Dissent.

And I think we've seen that in the voting rights case, the idea that the sovereignty of the states actually does matter. Going forward, we will see this rhetoric picked up in the Bond case also. This is a case coming up this term about the ability of Congress to amend their laws based on foreign treaties and expand their powers. I think we're going to see a nice, narrow policing of the federal government's power from the Roberts Court.

Now, even though-- and if I-- I'm sorry. Even though Obamacare survived, and yes, there are many other lingering attacks, but the court may or may not strike them more, I think we learned a lot about the American people also. For a long time, people assumed the Constitution just didn't matter. Nancy Pelosi famously said, when someone asked her, is this law a Constitution? What did you say, Ilya? What was her line? Are you serious? Are you kidding me? Are you kidding?

By the way, I actually gave a consult for reading at Ilya's wedding, and I asked some questions in the same fashion. So I'm just having fun now. That's so romantic. It was called On the Framers in Love. It was quite beautiful. It's on YouTube. It's on YouTube. Yes. Oh, Cato records everything. So the issue is, what do the American people feel about this? And I think the Obamacare law inadvertently awakened a sleeping giant among the American populace.

People have this natural yearning for the Constitution, which we saw. Thousands of people turn up from nowhere, spontaneously, on Capitol Hill to march against a federal law. This was remarkable. And although we don't really see much of the Tea Party now, I would say it's dormant, slumbering, perhaps, this can be reawakened at the right moment. We know it's lurking within the American people.

And this might be the most important lesson going forward that we here at the Cato Institute and elsewhere should keep fighting and keep talking about the Constitution, keep talking about liberty, and keep talking about the federalism structure we have, and make sure that discussion is ongoing

Because when something big comes along, like Obamacare, we have the foundation, we have the framework, we have the army ready to roll. It's no accident that Randy and others were able to mobilize very quickly, because we have these institutions here for when these kinds of things happen. And all of you here are members of that movement in one fashion or another, at least you're here, perhaps not to people watching on TV, but everyone here recognizes this. And I think going forward we should keep this in mind.

And, Ilya, am I good on time? Is that it? All right. All right. And I will cede the rest of my time to my distinguished co-panelists. And I thank you all so much for coming to hear about this book. And I will be signing afterward. I hope to sign one for every one of you. Thank you so much. Thank you, Josh. You can tell he's kind of an unconventional law professor. I'm sure our students love him.

Next, we'll have the ideal commentator for Josh's book, none other than Randy Barnett, whom the New York Times rightly called the intellectual godfather of the Obamacare litigation. What's more, he was counsel to the National Federation of Independent Business in the case. More prosaically, he's the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he directs Georgetown's Center for the Constitution, as well as a senior fellow here at Cato.

In 2004, he argued the Supreme Court's medical marijuana case, Gonzalez v. Raich, which would play a large role in NFIB v. Sebelius. He's written more than 100 academic articles and nine books, including leading case books on contract and constitutional law and the magisterial Restoring the Law's Constitution, the Presumption of Liberty.

Randy's a regular commentator in print and broadcast media, including, and I didn't know this, the Ricky Lake Show. He's also a movie star. Reprising his first job after law school, he portrayed an assistant prosecutor in the independent film Inalienable, a sci-fi morality tale written by Star Trek's Walter Koenig.

Randy let me accompany him to all the lower court arguments in this case. Richmond, Cincinnati, Atlanta, and D.C. We were joking that we'd have T-shirts made up of our tour. And we're the only ones in the country who hit all of them. So it's an honor for that among very many reasons to have Randy Barnett here. Well, thank you very much, Ilya, for that introduction. And congratulations, Josh Mazeltov, on this wonderful accomplishment of having a book. I mean, I remember when Josh was a

Did I meet you in your second year or third year? Second year. Second year of law school. I mean, it's kind of interesting. I mean, I met David Bernstein when he was a law student as well. But it's interesting to see when these law students come ahead and they accomplish big things. And this is a really, truly big thing that you've accomplished with this just amazing book, this riveting book. You buy this book if you want to hear a great story because that's what it is. It's a terrific story about what happened. It's the behind-the-scenes story of what happened, written by somebody who not only interviewed all the principals,

who were involved, including people from the government, and got their perspective that had never been shared publicly before. But Josh was actually there at the beginning, at the very moment in which the opposition to Obamacare, both the legal challenge and the political challenge, really got started, which was at the Mayflower Hotel here in town in November of 2009, in a moment that he has dubbed the Mayflower Compact, which

in which outside in the corridors of a Federalist Society National Lawyers Convention, I joined a group of people who were just chit-chatting about something or another. And Todd Gazziano of the Heritage Foundation asked me if I wanted to be involved in opposing the Senate bill, which had not yet been actually produced by a committee yet. We didn't even know what the text of it was yet.

And after expressing some initial skepticism, I agreed that I would do so, but only if he found somebody who could do a first draft of the paper. And then it was at that moment that he said, I think I can do that. And eventually, he found Nathaniel Stewart,

who did a tremendous amount of work in identifying the legal theory that we eventually used to oppose the law. And Josh was in that group of people at that moment at the Mayflower Hotel and witnessed that event. Little did we know what would grow out of that moment. Little does anybody know what grows out of individual moments that you might have and you might share in the future.

So I urge you to buy this book. It's a great read. It is a story. He's able to very skillfully weave together both the narrative as well as the law. And I have to tell you, that's a pretty big challenge to be able to do that. And he meets that challenge quite well.

In my talk today, in my remarks today, I want to make a few points, some of which really do echo what you've already heard, both from Ilya and from Josh, about what we accomplished in the case and also why we accomplished, how we accomplished it. So what we accomplished is going to be somewhat of a repeat. How and why we accomplished it might be something that you haven't necessarily heard before. First of all, as to what we accomplished in the case, because

The rest of it, how, only is premised on the idea that we actually did accomplish something. So first I have to make the claim that we did accomplish something in the case. Some of you may think otherwise. And I try to summarize this in my forward to the book. I did write the forward to this book. I was very privileged to. And let me just read to you at least the bullet points

of what I think we accomplished in the case that comes from the forward. I explained it a little more thoroughly in the forward itself. I said, first of all, we prevailed in establishing that the federal government lacks the power to compel people to engage in economic activity. That's the first thing we established with five votes on the Supreme Court. Secondly, we were vindicated in our claim that the government's authority to solve problems that affect the national economy is not a blank check.

for the expansion of federal power to do so. Thirdly, we established that Congress may not simply invoke the necessary and proper clause to do an end run around the limits of its commerce power. Fourthly, we showed that Congress cannot avoid the limits that the Constitution places on its power to govern simply by calling something a tax after a law is enacted

Fifthly, to be constitutional, we achieved the ruling that any such tax must be low enough to be non-coercive and preserve the choice to either conform or pay the fine. And sixthly, we succeeded in showing that Congress's power to compel states to accept federal money can be coercive and also be held unconstitutional by the Supreme Court of the United States.

For those of you who are still wondering what we might have accomplished, whether those six accomplishments really are much of anything, I ask you to imagine that the Controlled Substances Act, which makes illegal all the recreational drugs that have a tremendous amount of appeal to a whole lot of consumers in this country, imagining that the Controlled Substances Act was enforced not as a commerce power regulation, which it is, that's what the Raich case was about,

But as a spending power or as a mandate-- or I'm sorry, as a tax under the NFIB ruling, supposing that was the way that the drug laws in this country were enforced. If that were true, if that was the basis for enforcing drug laws in this country, then we would have to open up the doors of the federal penitentiaries and release tens of thousands of prisoners who are now there because they would not be able to be incarcerated for failing

for using or even selling these recreational controlled substances. All they would have to do in order to conform their conduct to the law would be to pay a small tax on the activity of buying or selling these controlled substances act. That would be a libertarian sea change

in the direction of the country if that were the means by which our drug laws were enforced. It would not be a perfectly libertarian outcome, to be sure, because there would still be attacks on this activity, and therefore, there would be the capability of restricting it, but it would certainly be a huge step in a libertarian direction. That is what we accomplished in this case. That is all the government was allowed to do at the end of the day in order to uphold this law.

And in addition to that, as Josh makes clear in the book, we also managed to hobble Obamacare a bit in two ways. First of all, we certainly

undercut its legitimacy in the minds of the public. For two years, not only was it argued that the Affordable Care Act was bad policy, but it was also argued that it was unconstitutional, which many people in the United States do care about. And so it became an illegitimate law and was held in legitimacy limbo long enough to become the subject of a presidential campaign, which would not have been possible had it not been for the lawsuit. Unfortunately, I'm not happy about the way that campaign turned out on the issue of the Affordable Care Act itself.

But it was made possible that the campaign even involved the Affordable Care Act was made possible by our lawsuit. And ever since then, the law has been consistently unpopular and more susceptible to being repealed or revised significantly than it would otherwise have been had it not been for our lawsuit. And I would also say that that

that by limiting the penalty that enforces the individual insurance mandate to a small non-punitive tax, we render the operation of the bill sufficiently problematic that it may actually be necessary for Congress to revisit this law in the future. And when that happens, there will be more opportunities for positive change than there otherwise would be had we not prevailed in this case.

And obviously, on the spending power, we gave states the ammunition they needed, the power they needed to resist the expansion of coverage of individuals under the Medicaid program that they otherwise would have lacked. And that was something else we accomplished that state governors across the country are using in order to resist the further implementation of this law. So that is what I think we accomplished. Now, how did we accomplish it? Well, obviously, I think individuals matter. I think individual people matter. So it matters who--

it was that was in the position to oppose this law. This wasn't done by nameless, faceless people. It was done by real people, and they deserve a thanks. I've already mentioned to you the role that Todd-- the crucial role that Todd Gaziano at the Heritage Foundation and the Heritage Foundation itself played in putting forward the original objection to the Affordable Care Act even before the bill emerged from committee. Josh tells the story in the book about what happened with that report that Nathaniel Stewart and I and Todd wrote.

and how it was used to shape the Republicans' argument in the Senate so that the Republicans who had not, the Republicans in the Senate who were not previously planning on making a constitutional point of order in the Senate because they couldn't, the staff couldn't think of a constitutional objection to make to the bill. Once they were exposed to this argument, they then did lodge a constitutional point of order and there was a debate on the floor of Congress

The day before the bill passed on Christmas Eve, that debate was broadcast on C-SPAN, and it brought to the country the issue of the constitutional problems with this bill in a way that was highly salient and otherwise would never have come about had it not been for Todd Gaziano and the Heritage Foundation, that would not have happened.

David Rivkin, the first lawyer who represented the states and the NFIB in their initial lawsuit, was one of the only lawyers and perhaps the only major lawyer in town, in this town, in Washington, who was prepared to take on what seemed at that time to be a sure loser. And yet he stood up for principle, having already called out the...

Health care reform is unconstitutional in a series of op-eds in the Wall Street Journal and is to be commended for being the first in the fight and to carry the fight to the government in this lawsuit. Then, obviously, the legal team of the Jones Day law firm, who I worked with representing the NFIB, did enormous work on their briefs. The brief that I think their brief had a particular influence on Justice Alito, Paul Clement,

who came into the case and made some brilliant oral arguments. Not only was his brief brilliant, and I think it was a brief that would have appealed largely to Justice Kennedy, but was also his oral, his performance in oral arguing both in the Court of Appeals and in the Supreme Court was a thing to behold, was a sight to behold. I was privileged to witness that. And also, I

I really would be negligent if I didn't mention the role that Ilya Shapiro and Trevor Burris, who's in the room, played in writing numerous amicus briefs. It's true that Ilya and I were the only people in every court of appeals hearing, although I was in Pensacola for the district court case. You weren't there for that, right? So I got one case out. I mean, it's kind of a point.

I got one hearing up on him, but he was there, but we wrote these briefs. I was too busy debating the case somewhere else in some other law school, I think, at the time. And he debated in all these law schools. And what Trevor and Ilya were able to do with the amicus briefs that I co-authored with them, the three of us worked together on these briefs, is make a pure constitutional argument of the kind that not all the lawyers for all the cases being litigated around the country were actually able to make at that point. So I do think that our...

amicus briefs did galvanize the best constitutional arguments against the case and they were eventually absorbed by the parties when the case eventually went to the Supreme Court. So these were the people, these are the people who must be thanked for the effort that was successfully maintained. However,

Although the existence of these individuals was necessary to the success that we enjoyed, by no means was it sufficient to the success that we enjoyed. And I want to talk about what else was necessary for the success that we enjoyed beyond individual people who happened to be at the right place at the right time and willing to devote themselves to this particular cause.

And at this point, I want to talk about something that law professors call popular constitutionalism. It's something Josh has already alluded to. And that is the idea that it is the people themselves that shape, in some sense, how the Supreme Court will interpret the Constitution of the United States. The people themselves, I don't believe, change the meaning of this document. And by the way, I held this up in my constitutional law class yesterday.

this week. I didn't have a copy with me and somebody provided me the copy. I wanted a prop so that somebody-- I said, oh, it's the Cato Constitution. I love the Cato Constitution. They insert the word liberty in the Constitution all over the place. So it's a different version of the-- no, no, it's the same Constitution.

So I don't believe that the people changed the meaning of this text itself, but there's no question whatsoever that the people have a big influence on what we would call constitutional law, which is the doctrines that come from the Supreme Court of the United States. That constitutional law does change. It does evolve. It is living, and it is influenced.

by the public's perception of what Jack Balkin basically said is off the wall and what is on the wall. That is, what arguments are beyond the pale and what arguments are to be respected are influenced. The question of whether you make an argument that's considered a crazy argument or a crackpot argument or a serious argument depends in part on the validity of that argument, but only in part. It also depends on how that argument is perceived by the general public. And that's why the involvement of the general public

in this case, was crucially important to us getting as far as we did as fast as we did. We can never count on the courts themselves to save the Constitution for us or to save limited government for us.

That isn't going to happen. It hasn't happened. The courts have let us down repeatedly. They let us down again in this case to a large degree. They are not going to do anything that a critical mass of the American people do not support them doing. They are a highly majoritarian and not a counter-majoritarian institution. They're only slightly counter-majoritarian. But generally speaking, they try to stay within the mainstream of what the people are thinking. And that's the reason why I think it's so important what the American people are thinking. So

Why is it that 99% of American law professors who considered the possibility of a legal challenge

scoffingly dismissed the merits of our challenge as frivolous. And in one case, one particular law professor said that any lawyer who signed a complaint or a brief in the case might be subject to sanctions for having made a completely frivolous argument and have to pay a fine for having done so. A law professor who I respect said that. Why is it? How is it that so many law professors missed the boat

on this case. Well, I think there's a lot of reasons for this. I'm not going to be able to go through all of them. But I think one of the most important reasons for this is that law professors tend to come from a similar culture, and they tend to assume that history is on the side of the politics that they all share.

There's just a general gut assumption that they are progressive and that history is moving in a progressive way and that everything that they've accomplished can never be, in their words, undone. Nothing, you can never go back. Everything that you want is negotiable, but everything they've got can never be given up.

That's the reason why you can't vote no on one of their progressive policies often enough. They will make you vote no again and again and again and again and again. And then the moment they get a yes vote, at that point, that issue can never be returned to again. That's the end of it. It's done. It's settled. That's in the bank. Let's move on to the next issue now.

And that, I believe, is the culture from which most law professors come. And according to that culture, an argument of the kind that we were making in this case is one that was completely alien to them.

because they believed it violated this trend of history that was on their side. And therefore, they were quite confident in their view that judges who tend to follow these political trends, and the Supreme Court in particular who tend to follow these political trends, would never consider these challenges seriously because as a cultural matter, they were simply off the wall. But I believe what our case shows, what this case shows, the NFIB case shows,

is that the tide of history is not invariably moving in a progressive direction. Our case was fought in the realm of public opinion, as well as in the realm of the courts, and in fact it had to be. And that's the reason why we got as far as we got.

So let me just take, I know I'm just, Ilya just signaled me I was out of time, or almost out of time, actually out of time, but let me just make one further point about how it was we were able to do this in the court of public opinion because I think it might be helpful to thinking about how to do it in the future.

And number one is I think you have to make a legal argument that appeals to the American people generally, to ordinary folks generally, not just lawyers, in a way that they can understand and appreciate. You can call these things sound bites, and in some respects they are sound bites,

But they are sound bites that have to have resonance. And they also have to be consistent with a sound and coherent genuine legal argument. They cannot actually destroy or undercut the reality of your argument. The first and most important one of these concepts is the title of this book, "Unprecedented."

This was a term that came from the Congressional Research Service, who wrote a position paper, a study paper prior to the bill being introduced in the Senate that argued that an individual insurance mandate of this kind would be unprecedented. And what we did in our Heritage Foundation paper is we moved that up to the front paragraph of that paper and led with the idea that this was unprecedented. And the idea that it was unprecedented became the first of the major soundbites

The second one was that we called it the individual insurance mandate. It was a mandate. The law refers to the individual responsibility requirement. Substantively, they're the same, but individual mandate is something that could be more easily understood than individual responsibility requirement.

The reason why the word unprecedented did so much work for us is because it means that if something really is relevantly unprecedented, then it means that all the previous Supreme Court doctrine that says one thing or another about it are not exactly on point and therefore don't directly dictate the outcome of the case. And now you have room to run in court if, in fact, you can establish that it is unprecedented. And many people took issue with our claim that it was. But ultimately, we prevailed such that every court who issued an opinion about this case

admitted that it was an unprecedented case of first impression. All right, so the last point I'm going to make is that what this tells us is that think tanks alone, as clever as they may be, and clever lawyering alone, as clever and as smart as lawyers can be, are never going to be enough to restore the lost Constitution. And by the lost Constitution, I mean the Constitution with all of its parts, not just some of the parts, being enforced.

And that's the reason why the social movement like the Tea Party is so important. Whether they're called the Tea Party or not called the Tea Party, none of this would have happened if a political movement had not formed around this issue. And I was myself out in front of the Capitol during a Tea Party rally against the bill at the weekend in which the bill was first passed by the House. When the bill was up to a vote in the House, I saw what that rally was like. Had that not been the case and then had talk radio not picked this up,

and run with it in the public domain using these concepts that were able to be translated to the American people, this would not have happened in the Supreme Court. It's what made our otherwise valid arguments sellable in the Supreme Court. They had to be valid arguments. If they weren't, they weren't going to work.

But being valid arguments alone were not going to be enough if it wasn't politically acceptable for the court to reach that conclusion, which we made it politically acceptable. Or I should say that the American people, a strong subset of the American people, made politically acceptable. So now the fight is on for the political soul of the United States. This book describes a crucial battle in that fight. And in this battle, we gain ground.

In this battle, we gain ground with this lawsuit, but the war continues. And you should read this book, I believe, as a case study of how that war needs to be waged and by whom. Thanks. Well, it's not unprecedented for speakers to go over their time. I'll excuse it in this case. Finally, it's my pleasure to welcome Jeffrey Rosen, the president of the National Constitution Center, which if you haven't been, you should go. It's in Philadelphia. It's a wonderful place.

permanent exhibit, rotating exhibits. It bills itself, I got this off the website, it bills itself as the first and only non-profit, non-partisan institution devoted to the most powerful vision of freedom ever expressed, the U.S. Constitution. What's Cato? Chopped liver?

Sister Institution. He's also a professor at George Washington University Law School, a non-resident senior fellow at the Brookings Institution, and the legal affairs editor of the New Republic. Jeff is a highly regarded journalist whose work has appeared in the New York Times Magazine, Atlantic Monthly, The New Yorker, and it's odd because most people are either New Yorker people or Atlantic people, and Jeff writes for both.

The Chicago Tribune named him one of the 10 best magazine journalists in America and the LA Times called him the nation's most widely read and influential legal commentator.

Since 2000, he's been a moderator at the Aspen Institute, where he hosts panels on technology and the Constitution, privacy, free speech, and democracy. He's the author of several books, including The Supreme Court, The Personalities and Rivalries That Defined America. Jeff is a graduate of Harvard College, Oxford University, where he was a Marshall Scholar, and Yale Law School. Please welcome Jeff Rosen. Thank you.

Thank you so much. It is a great pleasure always to be here at Cato. You are more than a sister institution to the National Constitution Center. You are one of the great defenders of liberty in this country. We've so enjoyed our partnerships with you in the debate series that we started. And I'll just make a brief plug to say that in addition to being, as Ilya said, the museum of We the People, the National Constitution Center is also America's town hall and a center for civic education.

And increasingly, on the web and on radio and on television, we're going to be sponsoring debates that bring together the best minds on all sides of every constitutional issue and let citizens make up their own minds. We are the only institution in the world chartered by Congress to disseminate information about the United States Constitution on a nonpartisan basis. That means we bring together libertarians and ACS and social conservatives, and we are the hosting platform for these great debates.

It's also a special honor to be here on behalf of my friend Josh Blackman. I agree with Randy and Ilya that this is the best book that has been published on the health care case. Josh did tremendous service in interviewing everyone on all sides of the case, including

including Randy and me and many others, and giving a fair-minded, riveting narrative of the most important and compelling constitutional case of recent history. So buy it and read it, and congratulations, Josh. Thank you. It's also a pleasure to be here with my good friend, Randy Barnett.

Randy is indeed, as the New York Times said, the godfather of the challenge to Obamacare. But he is also, to give him his due, the intellectual architect of one of the most important challenges to constitutional conventional wisdom of the past generation.

And I agree with everything that he said in his thoughtful talk. He is correct that ideas matter and that it was his vision that the zeitgeist about the proper scope of Congress's power could be changed and that it was important to change not only in the courts but also in the court of public opinion, that popular constitutionalism matters, that winning the hearts and minds of the American people matters. All those are sentiments that I enthusiastically embrace. And I congratulate him for coming within a hair's breadth of achieving his goal.

You won't be surprised, Randy, to note that I'm going to talk today about one part of this book that somehow you and Josh and Ilya didn't mention. And that is a claim that surprised me when I read the introduction. Namely, how is it possible that this compelling intellectual challenge that persuaded a majority of Americans that the mandate should be struck down failed on the conservative Roberts court? Well, the answer comes right in Randy's foreword on page...

11 of the book, and that is that this ground swing of popular constitutionalism was thwarted by a liberal conspiracy led by none other than me. Me. I'm the one who denied Randy his victory in the health care case. Here's what Randy says. Soon after the case was submitted to the court, I became distressed by an extraordinary and unprecedented effort to try to influence the court's private deliberations.

After the case was submitted, many on the left, from President Obama to Patrick Leahy to journalists such as Maureen Dowd, E.J. Dionne, and Jeffrey Rosen, vociferously waved what I call a campaign of disdain against the conservative justices in general, and Chief Justice Roberts in particular, in an effort to influence and even intimidate one or more of the justices to capitulate.

These efforts were troubling in light of the report that at the very time when these attacks were at its peak, the Chief Justice began to pull back from his initial conference vote. Although we may never learn whether the Chief Justice changed his vote, and if so, why these preemptive attacks on the court's legitimacy, should it invalidate the President's signature legislation, left a stain on the entire case. Strong words.

And then Josh further reports in his very fair-minded and thoroughgoing account that the conspiracy went further, that essentially Randy and Judge J. Harvey Wilkinson and I attended a dinner at George Will's house

Right after I had written an article noting that were the chief justice to invalidate Obamacare, he would violate the pledges that he had given to me and other journalists when he was first nominated, that he cared about the court's institutional legitimacy. In this interview, the chief justice has said that he wanted to make a signature of his chief justiceship in an effort to persuade his colleagues to put institutional concerns above their own ideological agendas.

And he said that he thought it was bad for the court and bad for the country when the court struck down signature legislation by five to four polarized votes. He said he would try to persuade his colleagues that in each of their decisions they should make institutional legitimacy a goal, and that he really, although he wasn't sure he would succeed, this is what he was going to stake his chief justiceship on. All right, well, I was very impressed by the chief justice in this interview. Some people thought I was too impressed. My wife decided I developed a man crush on John Roberts. LAUGHTER

But the truth is that I took very seriously his... I lost my man crush. Well, I got it back. Because I always assumed that he would do what he said he did. And although he had a mixed success, let's say, in avoiding five to four decisions during the five or so first years of his chief justiceship, with notable failures like the Citizens United case, I always thought that in the end he would do what he said. And that's why toward the beginning of May I wrote a piece saying...

Chief Justice Roberts said that he cared about institutional legitimacy and he wanted to avoid five to four votes. If he were to invalidate the Health Care Act by a five to four vote and disregard institutional legitimacy, then he wouldn't have achieved what he said he did. Now, when I wrote this article, I thought I was merely pointing out the bleedingly obvious, that the man had articulated an earnest vision and that this was a big test of that vision.

But I learned from Josh's book that in fact I was the head of a nefarious conspiracy that in fact at this dinner at George Will's house, which I thought was just a book party for J. Harvey Wilkinson,

In fact, our convivial, as Randy puts it accurately, discussion of judicial restraint galvanized George Will and other conservative commentators to resist my efforts to intimidate the chief justice. And it was around this time I learned again from Josh that Chief Justice Roberts was beginning to go wobbly. And there were reports that he had, in fact, shifted his votes from an initial vote to strike down the mandate to one to uphold him.

And therefore, Will and Kathleen Parker and a bunch of other conservative journalists wrote articles calling on the Chief Justice to have a spine of steel and to resist the ministrations of nefarious journalists like me who were trying to intimidate him. And they expressed confidence that he would resist them. And then, according to this conspiracy account, which Ilya very vividly embraced in his introductory remarks, the Chief Justice faced the test and he failed.

On the one hand, the opposition of the majority of the American public to Obamacare. On the other, the possibility of disapproval from Jeffrey Rosen. And in fact, he was so afraid of this disapproval that in a craven political act, he shifted his vote and he guaranteed that his legacy would be viewed as one of politics rather than principle, and he deserves nothing but disdain from principled defenders of judicial constitutionalism.

Well, I'm here to really just point out the bleedingly obvious that this is a complete fantasy. The entire conspiracy theory rests on the notion that I knew that the chief justice was going wobbly and in fact wrote this article in an effort to intimidate him.

I didn't know it. The first time I learned about it was from Jan Crawford Greenberg after the case came down, and then I learned from Jeffrey Toobin's book that far from me being the one who had inside information about the Chief Justice going wobbly, it was in fact George Will. That dinner party that I stumbled into, not just again thinking it was just a nice book party, was one where George Will had grumblings from the court according to Jeffrey Toobin's account of the book.

where the conservative clerks were so upset that the chief justice had changed his vote that they were complaining to colleagues who complained somehow to George Will, and he wrote these columns to sort of shore up the chief. So if there's any conspiracy at stake, and I wouldn't use the word, it was basically Will who was using this inside information to try to bully, scare, persuade the chief justice to change his vote.

Now, so that's all there is to it. I mean, I didn't know that he had changed his vote. I wrote the column because I believe what he said. And in fact,

He meant what he said. And far from Ilya's conspiratorial theory being one that should persuade you, I really want to take a moment to say how much respect the Chief Justice deserves for doing exactly what he said. Now, you may not agree, and in fact, obviously, most people at Cato do not agree with Chief Justice John Roberts' notion that institutional legitimacy should trump ideological purity. But he believes it. Obviously, he wouldn't have talked about it for an hour or two in an interview if he didn't believe it.

And I happen to believe it too. I think the Chief Justice is correct when he says that when the American public perceives the Supreme Court repeatedly striking down signature legislation by polarized political votes, their faith in the neutrality of the court as something that transcends politics is undermined. I also believe that this was a hard vote for the Chief Justice, to whom I haven't spoken, by the way, since that interview came down.

I think that he was obviously facing tremendous pressure, not just from people like George Will, but also from his conservative colleagues who, as we also learned from Josh's book, like Justice Anthony Kennedy, were lobbying him repeatedly to change his vote. It was Kennedy who was so eager to get him to have a spine of steel. But Roberts, and I don't think he would have cast this vote if he were a regular associate justice, I think he felt that the chief has a special role in

And he thinks that the great chief justices throughout history, like his hero, Chief Justice John Marshall, have always recognized that institutional legitimacy is key to shoring up their legacy in the long run. And far from being cravenly political, and obviously it's not political, because as you pointed out, the decision was counter-majoritarian. Most people wanted the court to strike down the mandate. He didn't do it because he thought that institutional legitimacy was more important than either following public opinion or

embracing the doctrinal purities of Randy Barnett. And far from that being unprincipled, I believe that there are strong arguments on all sides of all constitutional questions that one of Randy Barnett's great contributions to constitutional debate is the idea that something that once had been off the wall can go on the wall fast. And I think it's...

Too bad that my colleagues in the legal academy were so quick to dismiss Randy's challenge because he did something really important and beautiful, and you deserve huge credit for this. You changed the constitutional debate, but not quite because there are very strong arguments on the other side, and the overwhelming weight of precedent, to use a word that comes up a lot in this book, was against you.

So the Chief Justice is confronted with a situation where the precedents and conventional legal opinion and 50 years of history point one way, and Randy Barnett is pointing another way, and he could plausibly choose between equally compelling constitutional arguments. Now, was this doctrinally pure in the surest sense? Of course not. It was the kind of twistification, to use John Marshall's wonderful epithet,

the one that Thomas Jefferson applied to John Marshall, he was choosing among competing arguments, and as Ilya said, even Justice Ginsburg wasn't persuaded by the decision to

strike it down under the Commerce Clause, but to save it under the Saxon Clause. But it was a decision of which John Marshall would have been proud, and it was well within the scope of the existing legal materials, and disagree with it on substantive grounds, absolutely fine. But to accuse him of being political, or even giving a wit, what any journalist or even

President Obama would care is not persuasive. Josh, I was surprised to hear in your introduction your notion that Roberts cast his vote because he was afraid of attacks on the court during election year. I don't think he gave-- I don't think he cared at all about that. I think he was pursuing the vision that he articulated when he took office, and he did it very well. Now, how does Josh Blackmun come down on this question?

Here I have to confess to another bit of a surprise. I left my copy of this wonderful book in Philadelphia, so when I was preparing for this panel this morning, I went back to an earlier version of the manuscript that Josh had sent a couple of months ago. And this is what I read at the conclusion of that earlier copy of the manuscript.

In the end, however, as the Chief Justice of the United States, like John Marshall before him, John Roberts had this special responsibility fall on his shoulders. He ably and unselfishly discharged this duty.

Well, now I come to the final version of the book on page 298 a few months later, and I read the following paragraph instead. Roberts hoped the NFIB decision would help preserve his vision of the court's unique role in American democracy. Only history can decide how he discharged his duties. He really toned it down.

I have to ask this, Josh. What is the source of the decision to so change your characterization of the Chief Justice? I can only assume it's a conspiracy led by Randy Barnett, the godfather who I read in the acknowledgements, read this book, nefariously worked his wiles, his evil wiles on Josh, probably invited him to a dinner at Maureen Dowd's house and convinced Josh to tone this down. I mean...

You know, I want to hear more about why you did that. But I think it's too bad because I felt, at least in the earlier draft, you seemed to be praising the Chief Justice for the same reasons I did, for essentially doing what he said he would do, for behaving out of his own sense of institutional legitimacy, and deserving praise for that. This talk of conspiracies, I think, is unfortunate. There is, as we know, on the right and the left,

a strand in American politics that Richard Hofstadter called the paranoid style in American politics. Hofstadter talked about the paranoid's interpretation of history is distinctly personal. The enemy is to possess some specially effective source of power. He controls the press. He has unlimited funds. He has a new secret for influencing the mind. He has special techniques for seduction. I think this talk of intimidation and conspiracy really is unfortunate because it's in that tradition.

Now, it's not unique to the libertarian right, although Hofstadter was talking about the Goldwater right, and also his thesis had been subsequently applied to the Patriot movement in the Tea Party. We see it on the left, both historically, as Hofstadter described in the...

Granger populist movement which demonized the banks and also I would say, you know in some of my own writing I've written about a libertarian movement to transform constitutional notions of the Commerce Clause Call it the Constitution in exile I've said that it's led by powerful figures with secret techniques for influencing the press like Randy Barnett and

And especially in the hands of the photo editors of the New York Times Magazine, I mean, I think that thesis got sort of twisted in a way that mirrored the conspiratorial talk that I know that Randy very much will regret and withdraw after this talk. So I think here's what I want to say about how all this comes down.

I think Randy Barnett is not the head of a conspiracy. I think he's the head of a really important intellectual movement. And I think what he's doing and trying to persuade the hearts and minds of America is important. I think his intellectual influence is great. I think that many judges have embraced his vision, and they include judges like Judge Roger Vinson.

who struck down the health care law. But I think other judges have not embraced his vision. And those include more traditional judicial restraint conservatives, like Judge Jeffrey Sutton and Judge Larry Silberman, for whom I have the greatest respect. I was really interested to learn, Josh, in your account that that panel at the Federalist Society that I moderated, where I talked about the tradition of liberal judicial restraint, and Jeff Sutton said, maybe the shoe is on the other foot. Shouldn't we conservatives--

be attentive to these claims. Are we the activists now? And then Josh notes that Jeff Sutton later upheld the health care law, suggesting that he was influenced by those challenges. Again, that wasn't an attempt to intimidate Jeff Sutton. It was an attempt to call him and other conservatives to their own principles in continuing to embrace the restraint side. So all I would say is, as I hope as this important debate goes forward in the country, let's abandon efforts to purge

personalize it to imagine their inside deals and secret meetings. It's a battle of constitutional ideals, which is a wonderful thing. That's what we exist to host at the National Constitution Center. And I'm so proud to have participated in this debate in the health care case.

I don't know what the future will bring. Randy is optimistic that the Commerce Clause opinion will have legs and will restrict the scope of federal government. I interviewed Justice Ginsburg at the National Constitution Center on Friday and asked her about the case.

And she disagreed, although she was a strong dissenter from the Commerce Clause opinion. She believes it will not have staying power, as she said on Friday, and thinks that in the end, the post-New Deal understanding of commerce will survive. We'll see. Time will tell, as Josh says in his new version of the introduction. But I think I'll close by saying that although I love so much about this book,

The title unprecedented is misapplied to the health care law. Laws cannot be unprecedented. Laws, as Justice Ginsburg said on Friday, arise to respond to the unique situations of the moment. Time works many changes, as my hero Justice Brandeis says, and legislation has to always rise to the challenge. Judicial decisions can be unprecedented. It would have been unprecedented for the Supreme Court to strike down the centerpiece of President Obama's

economic legislation. Thank goodness they didn't, and the fact that they didn't is a tribute not to the political instincts, but to the constitutional principles of Chief Justice John Roberts. Thank you so much. Thanks. Just to clarify something, well, I don't want to speak for Josh and Randy, but my version of the conspiracy is not that the President or Senator Leahy, let alone journalists, caused John Roberts to change his vote.

But that is the perception of the American people. And perception often is important. That certainly contributed to the loss of the legitimacy or the popular respect for the court, which is, again, ironically, as I pointed out, one of the reasons, presumably, that John Roberts acted as he did. So what I am arguing isn't, again, that he was persuaded in one way or another, but by taking these

extra legal considerations. He misfired in that. He miscalculated. Well, I mean, we don't know 30 years from now, I guess, what the reputation of the court is, but at least, you know, it's been a year and a half, and the court was damaged by his decision. Comments from Randy, Josh? Randy, go first.

First of all, I just really, really enjoyed Jeff's comments a lot. They were terrific. I can't say that I agree with all of them, though, the way he said he agreed with mine. I can't agree with all of them. Let me talk a little bit about the so-called conspiracy. It was...

I'm glad you recognize the irony of calling out the supposed conspiracy theory mongering after writing that New York Times piece on the Constitution exile movement, which really was a very conspiratorial sounding, not just the pictures, but the story itself. It made it a very conspiratorial sounding movement. There is an irony in Jeff objecting to conspiracy theories. Let me just talk a little bit about this particular issue in this particular case.

I don't know what was in John Roberts' mind. I don't know what was going on behind the scenes. I don't know if he was influenced by Jeff. And it wasn't just Jeff, but it was a cacophony of abuse that was heaped upon the court from the very moment oral argument revealed

that there were probably at least four if not five votes for invalidating the Affordable Care Act. I chronicled, for the historical record, I chronicled the degree and extensiveness of this vociferous objections to the conservative justices, the attempt to dismiss

demean them and disdain them. In a piece I did for the Harvard Law Forum online called the Disdain Campaign, in which I show what it was, I document this outpouring of vituperative rhetoric aimed at the justices while they're being deliberating. I note, as I note in the forward here, that when I was a prosecutor in Cook County, Illinois, trying jury trials in Cook County, Illinois, which you know, Cook County

It has kind of a reputation for some judicial unsavoriness. There was, at the time, I was a prosecutor, a federal investigation into corruption in the circuit court of Cook County. But even in Cook County, once a case went to the jury, I could go back to my office and work on other cases thinking that the jury was not going to be tampered with. And yet the moment that the case was submitted, so to speak, in court,

literally in the court, an outpouring of objections from the president to the chairman of the Senate Judiciary Committee, Pat Leahy, all the way down to the lowly Jeff Rosen, objecting to what they anticipated might be a ruling that would thwart the tides of history and call the legitimacy of the court into question. But I don't know what actually affected John Roberts, but I do know this.

I do know this. Jeff argues that, look, there were reasonable arguments on both sides. And of course, there were reasonable arguments on both sides. And I never once in the two years I debated this case publicly dismissed the supporters of the law for making an unreasonable argument. I spent all my time defending the fact that there was a reasonable argument on our side, too, when they were dismissing its frivolous. I never denied that this was a close case that could go either way, given the existing legal materials to be applied. Never denied that.

insisted upon it as a matter of fact. However, the consensus was this was a choice between the vision of the Constitution enunciated by the four liberal justices and Justice Ginsburg's opinion, which argued that this case,

law was clearly constitutional under the Commerce and Necessary and Proper Clause, and also under the tax power, but only as a fallback theory. Or it was unconstitutional under the theory that we articulated, which ended up being very ably made by the joint dissenting opinion in the case. This is what the choice was.

was, between this one vision of the Constitution and the other vision of the Constitution, no one, nobody, no person, no judge ever made the position publicly, and I debated this publicly, and I have a pretty good idea of what everybody was saying, but never did anybody say that

that this law was unconstitutional under the Commerce and Necessary and Proper Clause, but was constitutional under a saving construction of the individual mandate, which would make it not a mandate at all, but an option to buy insurance or pay a tax. And that tax had to be a non-punitive tax

And therefore, the entire law could be saved by a saving construction of that? Never. Nobody said that. There were two law professors who argued that a judge could do that if they wanted to. So someone saw the position was available, but no one advocated that position. Only John Roberts, unique of every judge who ever considered this case, Democrat-appointed or Republican-appointed judge, saw this as the legally compelled outcome.

Well, it does suggest, given the fact that on the one hand, he joined with the dissenting justices to accept all of our constitutional arguments as being valid. But on the other hand, he found a way to uphold the Affordable Care Act pretty much in toto. This is what suggests, Jeff,

that this was a political decision and not a judicially driven decision. And in fact, this was the grounds on which you urged the decision to be made and your colleagues urged the decision to be made on political grounds, not maybe partisan political grounds, although you said again today it would have been unprecedented for the president to invalidate what would be the centerpiece legislation of a

of a pres- I'm sorry, for the Supreme Court to invalidate what would have been the centerpiece of a president's platform. That's a political argument. That's a political consideration that should have absolutely nothing to do with this case. But you made that front and center in this case, as did your colleagues. You were not alone.

And that's what made this decision seem like it was political. And it was reinforced by Chief Justice Roberts' own reasoning, which was political in the sense that it was not legally compelled. Or if it was legally compelled, he's the only justice to have seen that as the legal rationale for the case. And apparently, if Jan Crawford's reporting is to be...

be believed. He only saw that as the legally compelled outcome sometime after the Friday conference following three days of oral argument. It occurred to him that this was the right legally justified outcome. And I just think that that's the reason why this case has attained.

It isn't a conspiracy theory. It isn't about somehow you communicating with the justice. It's what I said, which what's publicly known. The public confrontation of the court and the way John Roberts responded by ruling the way he did in public, which everybody can read and draw their own inferences from. - Do you wanna reply to that, Jeff? - Sure. On the campaign of disdain, it was not a campaign of disdain. It was a campaign of respect.

It was a campaign of respect. I mean, if you read that piece I wrote, it was completely mild mannered. There's no vituperation in it. It just sets out what John Roberts' vision is and says if he strikes down the law, then he wouldn't be fulfilling the vision. So there's no disdain. That's true of your piece. I agree with that. I also think you can't, Randy, argue that it's important to change the hearts and minds of the American public when it comes to constitutional arguments.

and then criticize commentators after a Supreme Court oral argument for making strong constitutional arguments and saying that the court would be violating their vision of the Constitution if it rules a certain way. That's what constitutional debate is about. It's perfectly appropriate for the president and the Senate Judiciary Committee and any blogger and any lowly journalist like me to make arguments, and that's what we did, and I think that was a good thing. Now,

John Roberts, there is one phrase I regret, and thank you for pointing it out. The problem isn't that it would have been unprecedented to invalidate the centerpiece of President Obama's economic legislation. That's not the right way of putting it. It would have been unprecedented to invalidate an act of Congress that was a substantial...

piece of social and economic legislation that was deliberated extensively and passed by Congress. You know, Randy, that I'm an opponent of judicial activism on the left and the right. I've expressed questions about Roe v. Wade. I think the court is wrong to strike down

both affirmative action and abortion laws. So I just don't share your constitutional vision that the court should be in the business of invalidating acts of Congress. And I do embrace Justice Ginsburg's definition of judicial activism, which she repeated at the National Constitution Center on Friday, is that the court is on most tenuous grounds when it strikes down acts of Congress because those are

generally represent national consensus. And I think Chief Justice Roberts was moved by that vision when he cited Justice Oliver Wendell Holmes in his healthcare opinion and said the court should be most cautious when it strikes down the acts of Congress. So that's what I think he was getting at and that's what I was getting at. And finally, and I think this is an important point of disagreement too,

You're equating Roberts's concern with legitimacy with being political, but they're not the same thing. It's a delicate balance. He is John Marshall. John Marshall in Marbury came up with a legal argument that hadn't occurred to the parties, that no one argued, that maybe occurred in the footnote of some 18th century blog, but no one else noticed. But he did that because of his broader vision of the importance of the court system.

appearing to be nonpartisan and maintaining its legitimacy with the public. And that's why it's perfectly permissible, given the plausibility of these competing arguments to do what he did. Finally, Ilya, you said the court harmed its legitimacy. You know, it's taken a black eye. You know, the polls are complicated, but everything I've seen suggests that the Democrats who

had opposed the mandate before the health care decision came down, switched their position, and actually supported the upholding of the mandate after the decision came down. So there was a kind of legitimizing effect of the court's decision. It may have been canceled out by Republican disappointment, but broadly, the legitimacy of the court does not seem to have been significantly affected by the health care decision. The numbers have been slipping a little bit since Roberts took office, but the truth is the public does not pay attention to the

report to blogs or Jeff Rosen or Jan Crawford Greenberg, they don't even remember that John Roberts switched his vote. So when you're gonna make claims about the effect of decisions on legitimacy, I think it's important to look at the empirical evidence more closely.

Let's open the floor to questions. And I'm going to normally, you know, wait for the microphone, give your identification, and actually ask a question. I'm going to relax that rule in calling on Clark Neely as the first questioner to respond to some of the activism discussions here. The first question? Wait for the microphone. Microphone's got to come back this way.

Josh, great book. Really tremendous job on that. My congratulations. Ilya, a wonderful event. Randy and Jeff, you guys should maybe think about pitching this in Hollywood. Maybe get a little sitcom going. A buddy movie, maybe. The Odd Couple. Clark Neely at the Institute for Justice. Let me ask you a question about the...

institutional legitimacy of the professoriate. I'm a litigator and I'm out there working with real people every day and I have to tell you, the average person in the street finds much of what the professoriate accepts as sort of bread and butter constitutional law appalling.

the backlash against the Kelo decision, where people basically found out for the first time that the Supreme Court has thrown property rights off the back of the constitutional sled and really doesn't think it's any of the federal judiciary's business if somebody wants to bulldoze your house to build Yuppieville. This was a real shock to a lot of people.

And I think the extent of the disdain for the Supreme Court's federalism jurisprudence, the idea that growing a plant in your backyard and giving it to a neighbor is interstate commerce, or at least can be regulated under the Congress's interstate commerce power, is not just appalling to Americans, but frankly, for many of them, they ridicule that as a position. They don't believe it has any integrity. Of course, I don't either.

But it seems to me that the professoriate maybe should pay some attention to what real people think and not dismiss their opinions as essentially uninformed when, in fact, there's a serious basis for some of these government-limiting positions that they have. So I guess throw the question out about whether maybe it is also the professoriate that needs to clean up its house and watch for its integrity and not just the Supreme Court. Thank you.

- Clark, I agree 100%. I agree with you and Randy that constitutional change is made among the people, not among the professoriate, although the professoriate can help persuade the people by putting new ideas on the horizon.

I was at a conference before the healthcare decision came down where I heard a professor express just contempt for Randy's decisions and say they don't even deserve to be written about. The argument was that the New York Times shouldn't even describe them. - What law school was that conference? - Well, it was at Yale Law School. And I thought that was just really unfortunate and goes against everything that I think Yale at its best stands for.

And it's also bad strategically for the professoriate to blind itself to the winds of constitutional change. I think the work that you, Clark, have done in persuading people to sign on to the property rights movement is great, and that is going to affect legal change in the long term. Now, again, I think Kilo was correct. I'm a judicial restraint guy and so forth. But you may win the battle because you're focusing on where a constitutional change happens. And I hope...

as a Democrat that liberals learn the lessons that you have learned on the libertarian right and realize that they've got to persuade people rather than just smugly assuming that yesterday's constitutional law is going to be tomorrow's.

- I'm gonna state the obvious and then I'm gonna say something that might surprise you. The obvious is that, you know, I'm a professional academic, Jeff is also. We both actually exist outside of academia as well, but we, you know, my bread and butter is as a law professor. First and foremost, that's what I think of myself as. And I'm just gonna state the obvious. In my line of work, it's 99 to one and actually that's generous. You know, at Georgetown, we have over 100 tenured or tenure track law professors

And there are three law professors who are identifiably right of center. And that makes us one of the more diverse law schools in the country, to have three. And so what this does is it breeds a corrupt culture of majoritarianism amongst it. And it would be true if it were 99 to 1 the other way.

And that is that what my colleagues know is that nobody they know thinks these things and these terrible Yahoo things that only cretins think. And those of us who are within the academia, and I'm treated very respectfully. I have a very good life, and my colleagues treat me well, and I get treated respectfully on the road when I'm speaking elsewhere. But I can be dismissed

as marginal just in their own minds just because there's only one of me or two of me or three of me and there's just many, many more of them. So it's a cultural thing. They have taken control of

You can call it a conspiracy or not, but I've been on the appointments committees where I see how this is done. I've been on the inside watching the discrimination take place against folks like myself. So I know this is an actual factual thing. And they've taken control of these institutions and therefore we've had to rely on contractors

on countercultural institutions like the Cato Institute and other places that are not within academia in order to strike back. And then what happens is it's so funny that progressives have institutional envy of people like the Cato Institute. And they write articles about how the Institute for Justice and the Cato Institute have combined to get

combined forces in this great Constitution exile movement conspiracy, when in fact the institutions of power are being controlled by the left in a remarkable fashion. So that's the part that is sort of stating the obvious. Now here's your comment about the Yale Law School conference. I wasn't there, which I think is interesting. Nobody like me was at that conference. I just heard about it.

I want to say something positive now, something extremely positive about the press.

and the press coverage of this case. That is something, I think it's in the book, I can't remember if Josh puts my statement about this in the book. The press coverage of this lawsuit was fair from beginning to end. It was fair, it was knowledgeable, it was informed. That's what the law professors were objecting to. They had members of the press on the panels there and they were objecting to the fairness of the coverage and said it was by being even handed in fair, they were objecting

inappropriately elevating the credibility of folks like me. And the press shouldn't have been in it. They should have been reporting that the judges who had struck down the law were stupid, literally. And the ones that upheld the law were smart. And the press was not even-handed. They were being overly even-handed.

But in fact, that's their criticism. The reality is the press was remarkably even-handed, covered the case fairly. I was never quoted out of context or inaccurately. All the stories that I read about the case were fair and balanced in the sense that they fairly reported our side, and they fairly reported the other side, and they also fairly reported the

the fact that the consensus of opinion amongst legal experts was that we had no chance that it was that was a fact to that was fair to report but i just want to commend the reporters who worked on this case the comp reporters who worked on this case

were better at understanding the dynamics of this case than the law professors who supposedly were paying attention to it. And I think that's, and the reason why, I'm trying to think, why were they so much better? And I don't really have a complete answer to that. But I think part of it was, is they covered the case from the very beginning to the end. They were at the courtrooms like we were there. They heard all the arguments.

They interviewed the other side, and they interviewed me and Ilya. And over time, I think what we told them had proven to be reliable and credible, and so they listened to us more as time went by. We proved ourselves by being more accurate or at least fair and balanced in what we told to them. And they didn't dismiss us as crazies, though the left wished they had. And if I could add one point, I think this case underscores how important think tanks are.

The arguments against Obamacare weren't really coming from the professoriate. They weren't in the law reviews. It came from a Heritage white paper and Cato Amicus briefs. And the validity of the think tanks is something that's very much a topic of conversation in Washington today. And the ability for people to rely on them and their ideas underscores how critical places like the Cato Institute are when these challenges arise and the frameworks in place to respond appropriately.

Indeed, both the Virginia and Florida attorney general's offices asked our advice on both procedural and substantive issues right at the very beginning. They couldn't turn to their UVA or University of Florida or whatever law faculties that were close to them because they didn't have someone there like Randy Barnett or what have you. I was debating Akhil Amar once.

with the other ILIA actually. - The Williams, right? - It was at Amherst. And Akhil Amar, one of his arguments said,

Ours was a crazy position because nobody at a top 10 law school, save Richard Epstein, supported Randy Barnett's position. And of course, Georgetown is, I guess, in the US News rankings, not in the top 10. They're like 12th or something. So he was purposely doing it. But anyway, I'll leave that there. Now, Clark, I was expecting you. The reason I gave you dispensation was because I thought you were going to go into this activism restraint thing. Because Clark, I'll give you a quick plug where

He has a new book out on judicial engagement, which we're going to have a forum on here at Cato, I think, in December. Sorry, October? It's next month. There you go. And this whole activism restraint, it's basically where you stand is where you sit. If somebody's talking, criticizing somebody for being activist,

It means they disagree with the opinion. Justice Ginsburg talks about activism and striking down voting rights or some other case from the last term. She strikes down lots of, she wants to strike down lots of cases. I mean, it's all about, the debate should be about are you getting the decisions correct or not? What is your constitutional theory? Let's engage that. Not this other, you know, to coin a term, legalistic argyle bargyle. Over there.

Yes, hi, Paul Kaminar, and I appreciate this panel and looking forward to reading Josh's book. And sorry I didn't have you as a student at Georgia Mason Law School when I taught there years back. Anyway...

I'd like to ask the panel about future challenges to this law and the court's decision that said even if the taxing power enables Congress to impose a tax on not appending health insurance, any tax must still comply with other requirements in the Constitution. And one of those requirements, and a big one, is the origination clause that says all bills for raising revenue must originate in the House of Representatives. And besides the

mandate tax. There are 15 other revenue-raising provisions in the bill that are raising hundreds of billions of dollars. And currently before the DC Circuit is an appeal,

raising that very issue. I'm going to be representing, as an amicus, Congressman Trent Franks and others who co-sponsored. He's chairman of the subcommittee of the Constitution, arguing this very point. They have a House resolution that said that Obamacare is unconstitutional because it did not originate in the House. I want to know what the panel's view is on the viability of that argument. And I'll just leave it at that and can respond to any feedback.

I'll take that. Thanks, Paul. It's a very interesting theory. You've already stated it accurately. I won't restate it. My view is that, first of all, I refuse during the two years or two and a half years in which our challenge was pending ever to make a prediction on how our case would come out.

I knew a lot more about it and I might have had a pretty knowledgeable opinion about how I thought it might come out, although my opinion changed over time. I never made predictions. I actually resent, not resent, I reject and object to the attitude of most of my colleagues who base all of their views of constitutionality on their predictions of how a court will or will not rule in the future as opposed to the validity or merits of the argument itself.

So I'm not gonna state an opinion about how likely I think that challenge is to succeed, as I never stated that opinion about my own challenge. I will simply say it has the virtue of validity. It has the virtue of being a very strong argument. Like Jeff says,

pretty much every constitutional argument, there's an argument on the other side and there are arguments on the other side of this one as well. So it's not an open and shut case, but no argument is an open and shut case. It's a very powerful argument that I think making a valid argument is a necessary, but unfortunately not a sufficient basis for actually getting a correct outcome in the case.

This will be the last question. Hi, Trevor Burstyn, the Cato Institute. My question is for Jeff Rosen, actually, two parts. Do you think that Roberts' taxing power decision, legally speaking, which has not been raised, we're talking about sort of strategically, is it compelling enough to do the work that it did? Or should it have been maybe rebreefed if you wanted to ask about taxing power?

And then secondly, how did your opinion of the arguments change over time as they were raised and discussed in Randy's arguments in particular? Good questions. Thanks for asking. I think it's a very legally plausible argument. I think Solicitor General Varely's greatest contribution was making it as strongly as he did. He teed it up for Roberts very well. Jack Balkin had also endorsed it.

The argument on the other side, the legislative history, of course, there was that comedy of the fact that all the Democrats originally said it's not a tax, it's not a tax. The Republicans said it was. And then as soon as the ink is dry, both sides switch. And the Democrats say it is a tax and therefore is authorized by the Constitution. And the Republicans say it's not. But for an originalist who doesn't care about legislative history, I think that should be less important than the function that

the tax served and I think Roberts did a fine job in embracing an argument that was strong from the beginning. How did my opinions change? I always took Randy's challenge seriously. I never certainly dismissed it out of hand.

I don't know, like Randy, I try not to predict for what it's worth. I always, I was, maybe it was the man crush, but I was kind of rooting for Roberts. I thought, I hoped he would pull something out of the hat. And I did text a friend minutes before the thing came down. I think it's not going to be five to four against, you know, I couldn't have predicted exactly what happened, but I was delighted.

Josh, before we adjourn, I want to ask you, what was the most surprising part of this for you as you wrote the book? I mean, you followed the arguments. You followed the case. You're a law professor. I think you were a clerk throughout most of it. But then you got to actually writing the book, interviewing people. What was kind of the most surprising or interesting thing that you learned through this process?

Oh, thank you very much. And for Jeff and Randy and everyone, this was a pleasure. I think what surprised me the most about this case was how significant it was to everyone. There are lots of laws passed by government that people might not like or dislike. But there was something particular about this law that triggered a reaction in the American populace that had never been seen before.

There was something that made academics like Randy and others work overtime, something that made Ilya travel around the country, something that made Jeff Rosen cling to his man crush that John Robertson polled it. There was something about this law and the manner in which it was passed that touched the American public.

And I don't know if we'll ever exactly know what it is, but the sentiment that this case was so important to everyone, that the Constitution does matter, that we have competing visions of what the Constitution says, is this charter of limited government that restricts what the federal government can do, or does the Constitution empower the federal government to enable people to pursue happiness through Social Security? I think these two competing visions of the Constitution were on display in this case so vividly.

And it was really this and not so much taxing and commerce doctrine that people worried about, but is what is relationship between the person and the state? Is it to help me or to let me alone and do my own thing? And I think that will be the constitutional clash which we're all going to contend with at places like Cato and Brookings and ACS and elsewhere of how the Constitution comes down. So this is just, as Randy says, another step in the journey and the process of wherever the Constitution takes us. Well, with that, let's thank our panel.