Sunday, May 22, 2011

Advancing Liberty, Creating Change, Part 2

See here for Part 1

Randy Barnett was the speaker I came to hear at the recent symposium, Advancing Liberty, Creating Change, --and he did not disappoint.

Mr. Barnett is a constitutional law professor, author of Restoring the Lost Constitution, argued before the Supreme Court in Gonzalez v. Raich (a key case in Commerce Clause precedent), written multiple amicus briefs in support of the unconstitutionality of the individual mandate, and is now the legal representative for the NFIB in the appeals case of Florida v. HHS (the same case in which Docs4PatientCare has filed an amicus brief).

Barnett briefly summarized how the case against the mandate developed, illustrating how a small number of people can make a big difference. A conversation between Barnett and someone from the Heritage Foundation led to a paper on the unconstitutionality of the individual mandate. The paper was published just before the bill was passed Dec. 23, 2009, setting out the terms of the debate, and providing Senate Republicans with a basis to place on record a constitutional objection to the mandate.

Currently, there are five individual mandate legal challenges on expedited repeal. The government has ramped up the seriousness with which it is defending the mandate by having the Solicitor General argue the case at the appeals level. This is a very unusual move as the government's top lawyer usually only becomes involved, if at all, when a case is before the Supreme Court.

Barnett expects the cases on appeal will wrap up around August or September allowing for a petition to the Supreme Court in the fall. Oral argument would then be heard by SCOTUS in January of 2012 with a decision by the end of its term in June. You can read Barnett's estimate of how the judges may rule in his article Commandeering the People.

Barnett emphasized the importance of having a viable alternative to the PPACA pass in the House. It doesn't have to become law, but something must exist as an expression of Congress' will and a potential means to prevent the total dislocation of health care reform. He also maintains that if we win, the gains are important but not that large. If we loose this battle, however, we lose the nature of this country as one of limited government (and I would argue, because of the gigantic regulatory power delegated by the PPACA, Rule by Law takes a crippling blow.)

At the reception after the talks ended, I spoke briefly with Mr. Barnett, thanking him for all of his work defending health care freedom. He recommended the ACA Litigation Blog as a good source of information for those interested in following this case closely. The site also has links to the official documents of the 5 legal challenges making their way to the Supreme Court.

If you are interested in delving further into the constitutional issues, I would recommend starting with three documents: Judge Vinson's ruling of FL v. HHS (which provides a concise and cogent summary of the history of Commerce Clause cases), Barnett's brief to the 9th Circuit Court of Appeals (which presents the key arguments of the unconstitutionality of the mandate consistent with current legal precedent), and his article "Commandeering the People" which takes a closer look at the role of the Necessary and Proper Clause in light of the current constitutional debates.

To rid ourselves of this onerous law, popular discontent must be the dominant mood of the country. To maintain discontent, we must avoid resignation by keeping the hope of affecting a change alive. One way to do this is to announce to each other support for repeal by wearing or displaying the Black Ribbons. The more Black Ribbons that are out there, the more people can see they are not alone, that there is hope of change.

Let's make a difference, now.


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